T-2886-84
X (Applicant)
v.
Minister of National Defence and Secretary of
State for External Affairs (Respondents)
INDEXED AS: X V. CANADA (MINISTER OF NATIONAL
DEFENCE) (TD.)
Trial Division, Denault J.—Ottawa, March 28 and
August 27, 1991
Access to information — Historian seeking access to records
of Canadian code-breaking agency "Examination Unit" for
1941-1942 and wartime intercepted enemy communications —
Ex parte representations and tendering of confidential infor
mation and expert evidence by secret affidavits allowed by Act
to protect confidential material — Right to cross-examine not
provided for in Act and no weighty and exceptional circum
stances to warrant cross-examination on affidavits — Nature
of confidential relationships between governments and impor
tance thereof in international affairs — Under Act, s. 13, head
of government institution must refuse disclosure if document
obtained in confidence; document remaining confidential
unless other government or organization consents to disclosure
or has made information public — Under Act, s. 19, personal
information to be withheld — Act not providing for disclosure
after 30 years or if applicant has good reason for requesting
information — However, head of government institution should
be able to state efforts made to determine if exceptions apply
— Under s. 15, refusal to disclose on grounds of injury or
probable injury to national interest must be reasonable —
Refusal to disclose post-1942 personnel information on basis
information not directly related to access request not justified
as relevance not basis for exemption under Act.
The applicant seeks access to records pertaining to a code-
breaking agency established in 1941, the "Examination Unit".
As an historian, he is interested in information concerning the
dismissal, allegedly as a result of diplomatic pressures from the
United Kingdom and the United States, of Herbert Yardley, the
head of the Unit in 1941, and records with respect to the Japa-
nese, Vichy French and German codes and intercepts obtained
when Yardley was associated with the Unit. The Minister of
National Defence released 413 pages of records without any
information therein being exempted, 132 pages with some
information severed by virtue of sections 13, 15 and 19 of the
Access to Information Act and 243 pages were completely
exempted on the basis of these sections. This is an application
under section 41 of the Act for a review of that refusal. The
respondents applied for an order that the application for review
be heard in camera and that the respondents may make repre
sentations ex parte and file supplementary affidavits in a sealed
form, not subject to access or cross-examination by the appli
cant.
Held, the applicant's application should be allowed in part
only; the respondents' application should be allowed.
The respondents had exercised reasonable diligence in
responding to the applicant's request and this section 41
review should not be expanded beyond the records exempted
under sections 13, 15 and 19 of the Act.
In light of the specific provisions of the Act which allow for
in camera hearings of review applications and in view of the
accommodation that is specifically provided to protect confi
dential material, the respondents' application should be
allowed. The right to cross-examine has not been provided for
in the Act. Nor were there "weighty and exceptional circum
stances" to warrant cross-examination by the applicant on the
confidential affidavits. Finally if the Act allows the head of a
government institution to make representations ex parte, then
clearly there can be no right to cross-examine on these repre
sentations.
Section 48 of the Act provides that the burden of demon
strating that records are subject to exemption is on the govern
ment institution. The information exempted under sections 13
and 19 is reviewable pursuant to section 49 of the Act which
provides that the Court may order disclosure or other appropri
ate measures if it determines that the head of the institution is
not authorized to refuse to disclose the record. The information
exempted under section 15 is reviewable under section 50
which provides that the Court shall order disclosure or other
appropriate measures if it determines that the head of the insti
tution did not have reasonable grounds on which to refuse to
disclose the record.
Section 13 Exemption
This section exempts from disclosure records containing
information obtained in confidence from foreign governments
or institutions. This reflects the importance of confidential
relationships between governments in international affairs.
Under subsection 13(1), the head of a government institution
must simply determine whether the information was obtained
in confidence and, if so, must refuse to disclose the record
unless the exceptions apply. The mandatory nature of this
exemption is set aside only if the other government or organi
zation consents to disclosure or has itself made the information
public. Since this was not the case herein, the exemption
should stand.
Section 19 Exemption
Personal information shall be withheld where it clearly fits
within and is not exempted by the relevant paragraphs of sec
tion 3 of the Privacy Act or subsection 19(2) of the Access to
Information Act. The Act does not provide for a discretion to
release information on the basis of how long ago it was
obtained. That Yardley died 35 years ago is not relevant to the
question whether personal information as to persons other than
Yardley should be disclosed unless such persons have been
dead for more than twenty years or have consented to the
release of the information. While it may be difficult to ascer
tain whether these exceptions apply, the head of a government
institution cannot simply state that he does not know whether
the exceptions apply. He should be in a position to state what
efforts were made in this regard.
Section 15 Exemption
This provision authorizes the head of a government institu
tion to refuse access where dislosure could be injurious to the
national interest. The Court must form its own opinion in
determining whether the explanations provided for refusing to
disclose are reasonable.
The Minister's refusal to disclose was justified in every
instance, except with respect to two records containing the
names, position, titles and date of hiring of individuals hired
after 1942. It was severed on the basis that the information,
which is post-1942, was not relevant to the applicant's request
for information about the Examination Unit during the "Yar-
dley period", 1941-1942. The fact that information is not
directly related to an access request is not a basis for exemp
tion under the Act and the respondents therefore did not have
reasonable grounds to refuse to disclose that information.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Access to Information Act, S.C. 1980-81-82-83, c. 11l,
Schedule I, ss. 2, 4, 6, 8(1), 10(1)(G), 13, 15, 19,
20(1)(b), 30(1), 41, 47(1), 48, 49, 50, 52(1),(2),(3).
Archives Act 1983 (Cth), s. 33(1)(a),(b).
Canada Evidence Act, R.S.C. 1970, c. E-10, ss. 36.1 (as
enacted by S.C. 1980-81-82-83, c. 111, s. 4), 36.2 (as
enacted idem).
National Security Act of 1947, 61 Stat. 498, 50 USC
§403(d)(3)(1982), §102(d)(3).
Privacy Act, S.C. 1980-81-82-83, c. 111, Sch. II, s. 3.
CASES JUDICIALLY CONSIDERED
APPLIED:
Maislin Industries Limited v. Minister for Industry, Trade
and Commerce, [1984] 1 F.C. 939; (1984), 10 D.L.R.
(4th) 417; 8 Admin. L.R. 305; 27 B.L.R. 84 (T.D.);
Kevork v. The Queen, [1984] 2 F.C. 753; (1984), 17
C.C.C. (3d) 426 (T.D.); Canada (Information Commis-
sioner) v. Canada (Secretary of State for External
Affairs), [1990] 1 F.C. 395; (1989), 64 D.L.R. (4th) 413;
28 C.P.R. (3d) 301; 32 F.T.R. 161 (T.D.); Canada (Infor-
mation Commissioner) v. Canada (Minister of National
Defence), [1990] 3 F.C. 22; (1990), 67 D.L.R. (4th) 585;
33 F.T.R. 234 (T.D.); Goguen v. Gibson, [1983] 1 F.C.
872; affd [1983] 2 F.C. 463; (1984), 7 D.L.R. (4th) 144; 3
Admin. L.R. 225; 10 C.C.C. (3d) 492; 40 C.P.C. 295; 50
N.R. 286 (C.A.).
DISTINGUISHED:
Central Intelligence Agency v. Sims, 471 U.S. 159 (1985);
85 L Ed 2d 173; 105 S Ct. 1881.
CONSIDERED:
Re Throssell and Australian Archives (1986), 10 ALD 403
(Adm. App. Trib.).
REFERRED TO:
Re Maher and Attorney-General's Department (1985), 7
ALD 731 (Adm. App. Trib.).
COUNSEL:
X for applicant.
B. A. Mcisaac, Q. C., for respondents.
SOLICITORS:
X for applicant.
Deputy Attorney General of Canada for respon
dents.
The following are the reasons for order rendered in
English by
DENAULT J.: This is an application by X (the "appli-
cant") pursuant to section 41 of the Access to Infor
mation Act, S.C. 1980-81-82-83, c. 111, [Schedule I]
[now R.S.C. 1985, c. A-1] (the "Act"), for a review
of the respondents' refusal to provide access to
records or parts thereof relating to the applicant's
Access to Information Request dated March 18,
1984. The respondent Minister of National Defence
refused access on the basis of the exemptions set out
in sections 13, 15 and 19 of the Act. By notice of
motion dated March 20, 1991, the respondents
applied, pursuant to subsections 47(1), 52(2) and
52(3) of the Act, for an order that the application for
review be heard in camera and that the respondents
may make representations ex parte and file supple
mentary affidavits in a sealed form, not subject to
access or cross-examination by the applicant. These
matters came on for hearing at Ottawa, Ontario on
March 28, 1991 at which time I granted the respon-
dents' application and reserved judgment on the
application for review under section 41 of the Act.
FACTS
In an effort to obtain and examine records pertain
ing to the "Examination Unit", a code-breaking
agency established in 1941 by Lester B. Pearson,
then Under-Secretary of External Affairs, the appli
cant submitted an unsigned Access to Information
Request (the "Request") dated March 8, 1984, to the
Department of External Affairs. Specifically, he
requested access to information relating to the years
1941-42 during which Herbert Osborne Yardley, a
cryptologist, was the Head of the Examination Unit.
Mr. Yardley had previously worked in the Cipher
Bureau in the United States during World War I until
it was disbanded in 1929 by President Hoover. In
1938 he was hired by Nationalist China to solve Japa-
nese codes and ciphers and in May, 1941 he was
hired by the Canadian Government to head up the
Examination Unit. He was subsequently released as a
result of alleged diplomatic pressure from the United
Kingdom and the United States. The applicant is
interested in information concerning Mr. Yardley's
dismissal and records with respect to the Japanese,
Vichy French and German codes and intercepts
obtained when Yardley was associated with the
Examination Unit. Therefore, in his Access to Infor
mation Request dated March 8, 1984 the applicant
requested records connected with:
1) Japanese codes and intercepts connected with the outbreak
of war in the Pacific, (Pearl Harbour, Hong Kong, Singa-
pore, Manila, etc.);
2) Vichy codes and intercepts connected with the islands of
St. Pierre and Miquelon and their take-over by the Free
French;
3) German codes and intercepts connected with the outbreak
of war between Germany and the Soviet Union;
4) The decision for replacing Yardley and his dismissal from
"Unit".
Pursuant to subsection 8(1) of the Act, the appli
cant's Request was transferred to the Department of
National Defence ("DND") which was identified as
the government institution having the greatest inter
est in the requested records. On April 13, 1984 DND
denied the Request and, in accordance with para
graph 10(1)(b), advised the applicant, without con
firming or denying the existence of the requested
records, that such records would be exempt from dis
closure pursuant to section 15 of the Act. On May 2,
1984 the applicant registered a complaint with the
Office of the Information Commissioner of Canada
and an investigation was initiated. The Commission
er's "Report on Results of Investigation" dated Nov-
ember 2, 1984 indicated, however, that the Informa
tion Commissioner was "satisfied that the
Department of National Defence was justified in law
in the course of action it followed" and that the appli
cant's complaint against the Department was not con
sidered to be well founded.
By notice of motion filed December 14, 1984 the
applicant brought an application under section 41 of
the Act to review the respondents' decision to refuse
access. However, DND subsequently discovered and
disclosed to the applicant records relating to the
Examination Unit and on March 29, 1985 he was
advised that further information would be forthcom
ing. Consultations with agencies of foreign govern
ments and a further review of the records in question
were conducted. On April 19, 1985, DND provided
to the applicant what it considered to be the balance
of the records, subject to severance where the mate
rial was exempted under the Act, relating to his
request of March 8, 1984. On April 23, 1985, the
applicant's application was "withdrawn, without
prejudice to a fresh application under the Access to
Information Act".
Another unsigned Access to Information Request
was submitted by the applicant on August 9, 1985 in
which he sought the following records:
What I am seeking are any records of the Examination Unit
from 1941 through January of 1942 (when Yardley departed);
any intercepted communications from German, Japanese and
Vichy sources; any personnel record regarding Yardley, (who
has been deceased about 30 years); and, any photographic
records of the Examination Unit (at Montreal Road or 345
Laurier Avenue) and its personnel, (if possible).
By notice of motion filed October 29, 1985, the
applicant brought another application for review
under section 41 of the Act wherein he described the
respondents' refusals to provide access as follows:
That the [respondents] refused access to records and parts
thereof pertaining to Herbert Osborne Yardley and the Exami
nation Unit claiming exemptions under Sections 13 and 15, as
well as Section 19, of the Access to Information Act during
their disclosures of records between January 30th and April
19th of this year when these records could have been dis
closed; and, that after the later disclosure of additional records
relating to the Applicant's original request the Minister of
National Defence refused access to records and parts thereof
claiming exemptions under Sections 15 and 19 ... when these
records could have been disclosed.
In a letter to the Court dated November 28, 1985,
counsel for the respondents noted, however, that the
Information Commission had not conducted an
investigation with respect to the information discov
ered subsequent to the discontinuance of the earlier
application for review. On November 19, 1987 a fur
ther report of investigation by the Information Com
missioner confirmed that DND had withdrawn the
exemptions and released the records to the applicant.
The Information Commissioner, therefore, recorded
the complaint as having been "supportable-resolution
negotiated" and the file was closed subject to the
applicant's right to initiate a separate investigation in
the event he was not satisfied with DND's response.
DND continued to provide the applicant with the
requested records, subject to the appropriate exemp
tions under the Act, as well as additional records
related to but not specifically referred to in his
request. The applicant also continued to make addi
tional requests for access and filed additional com
plaints with respect to the manner in which the
records were being processed by the respondents and
the refusal to provide photographic copies of photo
graphs.
The respondents now advise that, despite the initial
refusal to disclose records, information was subse
quently released to the applicant on January 30, April
1 and 19, 1985 and on August 8 and September 16,
1988. In all 788 pages of records had been identified
as being relevant to the request. However, only 413
pages of records were released to the applicant with
out any information therein being exempted, 132
pages of records were released with some informa
tion severed therefrom by virtue of sections 13, 15
and 19 of the Act, and 243 pages were completely
exempted on the basis of these sections. In his Mem
orandum of Fact and Law dated March 8, 1991 the
applicant also states that the respondents have not
provided him with access to many of the requested
records including the German, Vichy French and Jap-
anese codes and any of the records originating from
the Communications Branch of the National
Research Council. He also alleges that records per
taining to the decision to replace Yardley have not
been fully disclosed. Nevertheless, a further investi
gation by the Information Commissioner subsequent
to the November, 1987 report does not appear to have
been initiated by the applicant.
ISSUES
1. What is the exact "refusal to provide access" that
is subject to this section 41 review?
2. Should the Applicant be given an opportunity to
cross-examine the deponents of the secret affida
vits? and,
3. Were the records or portions thereof properly
exempted pursuant to sections 13, 15 and 19 of
the Access to Information Act?
ISSUE NO. 1: What is the exact "refusal to provide
access" that is subject to this section 41
review?
The history of this application reveals that there
have been a number of access to information
requests, complaints and investigations initiated by
the applicant and a number of attempts to provide
access to records on the part of the respondents.
Therefore, it is not readily apparent which refusals to
provide access are at issue in this section 41 applica
tion. The relevant provisions of the Act which deal
with requests for access, complaints, investigations
and review are as follows:
4. (1) Subject to this Act, but notwithstanding any other Act
of Parliament, every person who is
(a) a Canadian citizen, or
(b) a permanent resident within the meaning of the Immigra
tion Act, 1976,
has a right to and shall, on request, be given access to any
record under the control of a government institution.
6. A request for access to a record under this Act shall be
made in writing to the government institution that has control
of the record and shall provide sufficient detail to enable an
experienced employee of the institution with a reasonable
effort to identify the record.
10. (1) Where the head of a government institution refuses
to give access to a record requested under this Act of 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 the Act on which the refusal
was based or, where the head of the institution does not indi
cate 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.
30. (1) Subject to this Act, the Information Commissioner
shall receive and investigate complaints
(a) from persons who have been refused access to a record
requested under this Act or a part thereof;
41. Any person who has been refused access to a record
requested under this Act or a part thereof may, if a complaint
has been made to the Information Commissioner in respect of
the refusal, apply to the Court for a review of the matter within
forty-five days after the time the results of an investigation of
the complaint by the Information Commissioner are reported
to the complainant under subsection 37(2) or within such fur
ther time as the Court may, either before or after the expiry of
those forty-five days, fix or allow. [Emphasis added.]
Although the second application for review dated
October 29, 1985 could be viewed as a continuance
of the former proceeding, it appears that a further
investigation by the Information Commissioner
should have been conducted with respect to the
records for which the respondents have claimed an
exemption and which have not been considered in the
previous investigations. However, due to the time
that has elapsed since the original request in 1984
and in the light of the efforts undertaken by both par
ties since the withdrawal of the first application for
review, to deal with the applicant's original request,
it would not be appropriate that the applicant now be
barred, on a purely technical basis, from proceeding
with his review application. However, it would be
appropriate, in my opinion to limit the review to a
failure to disclose those records relating to the
request of August 9, 1985 in so far as they relate to
the initial request of March 8, 1984. Specifically, the
review should be limited to a consideration of the
records which have been completely withheld or sev
ered on the basis of exemptions under the Act as out
lined in the affidavit of Lesia Maruschak, Access to
Information and Privacy Officer, DND Communica
tions Security Establishment, dated October 20, 1988.
In any event, the Court is not in a position to know
whether additional records exist.
This appears to accord with the applicant's request
at paragraph 20 of his affidavit dated October 28,
1985 for an impartial review of all the records or
parts thereof exempted under sections 13, 15 and 19
of the Act. The applicant has nonetheless argued that
the efforts of the respondents to disclose were inade
quate. He observes that much of the requested infor
mation was not discovered until after he commenced
the application for review and he suggests that, with
further efforts, additional documents that may have
been forgotten or mislaid, such as the "French Bulle
tin", could be located. He suspects that there has been
an effort on the part of DND to conceal information,
particularly in the light of the initial secrecy sur
rounding the existence of the Examination Unit, and
he questions whether the respondents have exercised
reasonable diligence in responding to his request.
Counsel for the respondents admits that the rela
tionship between the parties did not get off to a good
start when the applicant's request was initially
refused. She states, however, that after several boxes
of documents were accidentally discovered and upon
consultations with foreign governments and a further
review of the other documents in question, records
were subsequently released to the applicant on Janu-
ary 30, April 1 and 19, 1985 and on August 8 and
September 15, 1988. Many of the documents pro
vided to the applicant were not part of his original
access request but were released in a spirit of co
operation, despite the fact that the Department was
not obliged to disclose these records to the applicant.
She submits that a diligent effort has been made to
respond to the applicant's access request and that no
documents have been withheld of which the respon
dents are aware. Unfortunately, as evidenced in a
memorandum dated May, 1972 and attached as
Exhibit "A" to the affidavit of Ronald Browne, DND
Access to Information and Privacy Officer, sworn
March 27, 1991, some of the material that the appli
cant is searching for has either been destroyed in a
general purging of the files that occurred in 1971 or it
has been placed elsewhere.
Section 6 imposes an obligation on the applicant to
state precisely what he is seeking and a correspond
ing obligation is imposed on the Canadian institution
to make all efforts to locate and identify documents
relevant to the request. It is evident here that the
applicant has received a great deal of information and
records in response to his original request, including
2,000 pages of records in August, 1988, which appar
ently go beyond the request. It certainly appears that
substantial efforts have been undertaken on behalf of
the respondents to respond to what in my opinion
appears to be a very broad request. I am, therefore,
unwilling to accept the applicant's submissions,
which are based on mere suspicion and speculation,
to expand this section 41 review beyond the records
exempted under sections 13, 15 and 19 of the Act as
listed in Ms. Maruschak's affidavit and as further
referred to in the affidavit of Ronald Browne, DND
Access to Information and Privacy Officer, sworn
March 18, 1991.
ISSUE NO. 2: Applicant's objection to the introduction
of secret affidavits not subject to cross-
examination — Should the applicant be
given an opportunity to cross-examine
the deponents on the secret affidavits?
At the outset of the hearing, the applicant raised an
objection to the tendering of the confidential docu
ments and expert evidence in the form of secret affi
davits because he did not have an opportunity to
examine the witness' testimony and verify their
expertise through cross-examination. The applicant
also submitted that ex parte representations were
inappropriate because he already knew the existence
of some of the records in his request, he could iden
tify several by name, and he was able to ascertain the
identities of agents and code names and other names
concealed in many of the records. He also submitted
that this information was identified elsewhere in the
disclosures and that, in any event, it was publicly
available.
However, in the light of the specific provisions of
the Act which allow for in camera hearings of review
applications and in view of the accommodation that
is specifically provided to protect confidential mate
rial, the only suitable way to deal with this issue is in
the manner proposed by counsel for the respondents.
The following provisions of the Act illustrate that
Parliament has to at least some extent anticipated and
provided for the concerns raised by the applicant:
47. (1) In any proceedings before the Court arising from an
application under section 41, 42 or 44, the Court shall take
every reasonable precaution, including, when appropriate,
receiving representations ex parte and conducting hearings in
camera, to avoid the disclosure by the Court or any person of
(a) any information or other material on the basis of which
the head of a government institution would be authorized to
refuse to disclose a part of a record requested under this Act;
or
(b) any information as to whether a record exists where the
head of a government institution, in refusing to disclose the
record under this Act, does not indicate whether it exists.
52. (1) Any application under section 41 or 42 relating to a
record or a part of a record that the head of a government insti
tution has refused to disclose by reason of paragraph 13(1)(a)
or (b) or section 15 shall be heard and determined by the Asso
ciate Chief Justice of the Federal Court or by such other judge
of the Court as the Associate Chief Justice may designate to
hear such applications.
(2) An application referred to in subsection (1) or an appeal
brought in respect of such application shall
(a) be heard in camera; and
(b) on the request of the head of the government institution
concerned, be heard and determined in the National Capital
Region described in the schedule to the National Capital
Act.
(3) During the hearing of an application referred to in sub
section (1) or an appeal brought in respect of such an applica
tion, the head of the government institution concerned shall, on
the request of the head of the institution, be given the opportu
nity to make representations ex parte.
In Maislin Industries Limited v. Minister for Indus
try, Trade and Commerce, [1984] 1 F.C. 939 (T.D.),
Jerome A.C.J. considered [at page 942] several pro
cedural questions arising under the Act including the
questions of whether an in camera hearing should be
held and whether cross-examination on filed affida
vits should be allowed:
On the subject of closed hearings, proceedings in our courts
must take place in full public view and in the presence of all
parties. Exceptions to this principle occur from time to time,
but must be kept to the minimum of absolute necessity. Even
then directions should be such as to safeguard the public inter
est in the administration of justice, and the rights of any parties
not permitted to participate. In applications under these access
to information statutes, the issue is confidentiality, and obvi
ously to conduct them in public view pre-empts the final deci
sion. For the present, therefore, there does not seem to be any
alternative but to restrict attendance to counsel for the parties.
A similar dilemma arises with the question of access to the
disputed documents by counsel .... Obviously, counsel cannot
be expected to argue intelligently on the nature of a document
he has not seen, yet to provide unrestricted access could prede
termine the central issue. This determination will vary with the
circumstances of each case, but here, having examined the full
text of the report, I considered it appropriate to accept coun
sel's undertaking of non-disclosure, even to his client, and to
allow him access to the disputed portion solely for the purpose
of argument. Otherwise, it seemed necessary that it remain
filed in a sealed envelope until final disposition of this motion.
[Emphasis added.]
Furthermore, I find support for this position in the
jurisprudence dealing with proceedings under section
36.2 [now section 38] of the Canada Evidence Act,
R.S.C. 1970, c. E-10 (as enacted by S.C. 1980-81-82-
83, c. 111, s. 4) where a Minister or the Crown in
right of Canada has made an objection to disclosure
on the basis that it would be injurious to international
relations or national defence or security. In Kevork v.
The Queen, [1984] 2 F.C. 753 (T.D.), Addy J. consid
ered inter alia an application for permission to cross-
examine the Director of the Canadian Security Intel
ligence Service on an affidavit in support of a section
36.2 objection to disclosure by the respondent Minis
ter on the basis of national security. The applicants
were alleged Armenian terrorists charged with con
spiring and attempting to murder a Turkish diplomat.
During the preliminary inquiry they sought informa
tion regarding surveillance and security service
profiles of informants. In Schedule "A" to his deci
sion, Addy J. considered whether there exists any
absolute right to cross-examination in such a case. He
observed that the common law itself has never recog
nized any absolute right to cross-examine on affidavit
evidence submitted in a proceeding and he com
mented [at pages 770-771]:
The present application is made pursuant to section 36.2 of the
Canada Evidence Act. There is no provision in the Act nor are
there any rules which provide for a right of cross-examination.
The rules of natural justice as well as the requirements of a fair
hearing do not include any absolute right to cross-examine on
affidavits. See the case of Armstrong v. The State of Wisconsin
et al., [1973] F.C. 437 (C.A.) at pages 439 to 444, where Thur-
low J., as he then was, dealt specifically and most comprehen
sively with that very matter and stated quite categorically that
neither paragraph 1(a) nor 2(e) of the Canadian Rill of Rights
[R.S.C. 1970, Appendix Ill] changed the principle in any way.
Leave to appeal to the Supreme Court of Canada from this
decision was refused. Furthermore his statement of the law
was approved and followed by the Supreme Court of Canada
in the case of Vardy v. Scott, et al., [1977] 1 S.C.R. 293. The
question in that case was whether there was a right to cross-
examine on a deposition taken for the purpose of deportation
of the applicant. The Supreme Court of Canada held that no
such right existed.
The same result was arrived at by the Ontario Court of
Appeal, since the enactment of the Charter ... See Re United
States of America and Smith (1984), 44 O.R. (2d) 705 ....
He determined that the question of whether cross-
examination should be allowed was a matter of dis
cretion for the judge. He then considered the objec
tion to disclosure and, noting [at page 772] that "[i]t
is difficult to exaggerate the importance of any ques-
tion pertaining to national security", he discussed the
difficulties that arise therefrom [at pages 772-7731:
What might appear to the uninitiated, untrained layman to
be a rather innocent and revealing piece of information might
very well, to a trained adversary or a rival intelligence service,
prove to be extremely vital when viewed in the light of many
other apparently unrelated pieces of information. Because of
this and by reason of the extreme sensitivity surrounding
security matters it would be a very risky task indeed for a
judge to decide whether a certain question should or should not
be answered on cross-examination. Furthermore the person
being cross-examined might be put in the difficult position of
in fact revealing the answer by objecting to disclosure. Finally
it is easy to foresee that many of the questions in cross-exami
nation would be objected to in the same manner as the original
questions which form the basis of the present application. This
would inevitably lead to further inquiries and further applica
tions, thus prolonging the matter indefinitely, creating a real
danger of an eventual breach of security.
He, therefore, concluded [at page 773] that "in an
application of this nature, unless very weighty and
exceptional circumstances are established, no cross-
examination should be allowed."
Here, the right to cross-examine has not been pro
vided for in the Act. In fact, Parliament has specifi
cally directed the Court to take precautions against
disclosure in this type of review application. I find
that the "difficulties" noted above by Addy J. are just
as relevant to the matter before me and I do not con
sider that "weighty and exceptional circumstances"
exist in these circumstances to warrant cross-exami
nation by the applicant on the affidavits submitted in
this proceeding. Finally, if according to subsection
52(3), the head of the government institution may
make representations ex parte, then clearly there can
be no right to cross-examine on these representations.
ISSUE NO. 3: Were the records or portions thereof
properly exempted pursuant to sections
13, 15 and 19 of the Access to Informa
tion Act?
Before considering the respective arguments of the
parties and before embarking upon a review of each
page of the records at issue, it would be appropriate
to consider the relevant provisions of the Access to
Information Act and the criteria established by Parlia
ment to determine whether a particular document or
portion thereof is to be exempted under the Act. Sec
tion 2 sets out the purpose of the Act, sections 13, 15
and 19 are the exemption provisions which are sub
ject to review in this application, section 48 estab
lishes the burden of proof on an application under
section 41, and sections 49 and 50 outline the stan
dard of review by the Court with respect to the sec
tions 13 and 19 and the section 15 exemptions,
respectively:
2. (1) The purpose of this Act is to extend the present laws
of Canada to provide a right of access to information in
records under the control of a government institution in accor
dance with the principles that government information should
be available to the public, that necessary exceptions to the right
of access should be limited and specific and that decisions on
the disclosure of government information should be reviewed
independently of government.
(2) This Act is intended to complement and not replace
existing procedures for access to government information and
is not intended to limit in any way access to the type of gov
ernment information that is normally available to the general
public.
13. (1) Subject to subsection (2), the head of a government
institution shall refuse to disclose any record requested under
this Act that contains information that was obtained in confi
dence from
(a) the government of a foreign state or an institution
thereof;
(b) an international organization or states or an institution
thereof;
(c) the government of a province or an institution thereof; or
(d) a municipal or regional government established by or
pursuant to an Act of the legislature of a province or an
institution of such a government.
(2) The head of a government institution may disclose any
record requested under this Act that contains information
described in subsection (1) if the government organization or
institution from which the information was obtained
(a) consents to the disclosure; or
(b) makes the information public.
15. (1) The head of a government institution may refuse to
disclose any record requested under this Act that contains
information the disclosure of which could reasonably be
expected to be injurious to the conduct of international affairs,
the defence of Canada or any state allied or associated with
Canada or the detection, prevention or suppression of subver
sive or hostile activities, including, without restricting the gen
erality of the foregoing, any such information
(h) that constitutes diplomatic correspondence exchanged
with foreign states or international organizations of states or
official correspondence exchanged with Canadian diplo
matic missions or consular posts abroad; or
(i) relating to the communications or cryptographic systems
of Canada or foreign states used
(i) for the conduct of international affairs,
(ii) for the defence of Canada or any state allied or associ
ated with Canada, or
(iii) in relation to the detection, prevention or suppression
of subversive or hostile activities.
(2) In this section,
"subversive or hostile activities" means
(a) espionage against Canada or any state allied or associ
ated with Canada,
(e) activities directed towards gathering information used
for intelligence purposes that relates to Canada or any state
allied or associated with Canada, and
19. (1) Subject to subsection (2), the head of a government
institution shall refuse to disclose any record requested under
this Act that contains personal information as defined in sec
tion 3 of the Privacy Act.'
1 The definition of "personal information" found in section
3 of the Privacy Act, S.C. 1980-81-82-83, c. 111, Schedule II
[now R.S.C. 1985, c. P-21] is reproduced in full below:
3....
"personal information" means information about an identi
fiable individual that is recorded in any form including,
without restricting the generality of the foregoing,
(a) information relating to the race, national or ethnic ori
gin, colour, religion, age or marital status of the indivi
dual,
(b) information relating to the education or the medical,
criminal or employment history of the individual or infor
mation relating to financial transactions in which the indi
vidual has been involved,
(c) any identifying number, symbol or other particular
assigned to the individual,
(d) the address, fingerprints or blood type of the indivi
dual,
(Continued on next page)
(2) The head of a government institution may disclose any
record requested under this Act that contains personal informa
tion if
(a) the individual to whom it relates consents to the disclo
sure;
(b) the information is publicly available; or
(c) the disclosure is in accordance with section 8 of the Pri
vacy Act.
(Continued from previous page)
(e) the personal opinions or view of the individual except
where they are about another individual or about a propo
sal for a grant, an award or a prize to be made to another
individual by a government institution or a part of a
government institution specified in the regulations,
(f) correspondence sent to a government institution by the
individual that is implicitly or explicitly of a private or
confidential nature, and replies to such correspondence
that would reveal the contents of the original correspon
dence,
(g) the view or opinions of another individual about the
individual,
(h) the views or opinions of another individual about a
proposal for a grant, an award or a prize to be made to the
individual by an institution or a part of an institution
referred to in paragraph (e), but excluding the name of the
other individual where it appears with the views or opi
nions of the other individual, and
(i) the name of the individual where it appears with other
personal information relating to the individual or where
the disclosure of the name itself, would reveal informa
tion about the individual,
but, for the purposes of sections 7, 8 and 26 and section 19
of the Access to Information Act, does not include
(j) information about an individual who is or was an offi
cer or employee of a government institution that relates to
the position of functions of the individual including,
(i) the fact that the individual is or was an officer or
employee of the government institution,
(ii) the title, business address and telephone number of
the individual,
(iii) the classification, salary range and responsibilities
of the position held by the individual,
(iv) the name of the individual on a document prepared
by the individual in the course of employment, and
(v) the personal opinions or views of the individual
given in the course of employment,
(k) information about an individual who is or was perfor
ming services under contract for a government institution
that relates to the services performed, including the terms
(Continued on next page)
48. In any proceeding before the Court arising from an
application under section 41 or 42, the burden of establishing
that the head of a government institution is authorized to refuse
to disclose a record requested under this Act or a part thereof
shall be on the government institution concerned.
49. Where the head of a government institution refuses to
disclose a record requested under this Act or a part thereof on
the basis of a provision of this Act not referred to in subsection
50, the Court shall, if it determines that the head of the institu
tion is not authorized to refuse to disclose the record or part
thereof, order the head of the institution to disclose the record
or part thereof, subject to such conditions as the Court deems
appropriate, to the person who requested access to the record,
or shall make such order as the Court deems appropriate.
50. Where the head of a government institution refuses to
disclose a record requested under this Act or a part thereof on
the basis of section 14 or 15 or paragraph 16(1)(c) or (d) or
18(d), the Court shall, if it determines that the head of the insti
tution did not have reasonable grounds on which to refuse to
disclose the record or part thereof, order the head or the insti
tution to disclose the record or part thereof, subject to such
conditions as the Court deems appropriate, to the person who
requested access to the record, or shall make such other order
as the Court deems appropriate. [Emphasis added.]
In accordance with section 48 of the Act, the bur
den of demonstrating that records are subject to
exemption is on the government institution. Sections
13 and 19 may be called "class exemptions" and sec
tion 15, an "injury exemption". The Court must apply
two different standards of review depending on the
exemption provision at issue. The information
exempted under sections 13 and 19 is reviewable pur
suant to section 49 of the Act which provides that the
Court shall order the disclosure of the record or make
such other appropriate order, if it determines that the
head of the institution is not authorized to refuse to
disclose the record or part thereof. The information
exempted under section 15, on the other hand, is
reviewable pursuant to section 50 which provides that
the Court shall order disclosure subject to appropriate
conditions or shall make such other appropriate order
(Continued from previous page)
of the contract, the name of the individual and the opi
nions or views of the individual given in the course of the
performance of such services,
(l) information relating to any discretionary benefit of a
financial nature, including the granting of a licence or
permit, conferred on an individual, including the name of
the individual and the exact nature of the benefit, and
(m) information about an individual who has been dead
for more than twenty years.
if it determines that the head of the institution did not
have reasonable grounds on which to refuse to dis
close the record or part thereof.
Applicant's submissions
The applicant submits that many of the exempted
records and severed portions of documents could
have been disclosed as they did not fit within the
exemption provisions of the Act. He questions
whether a serious review was conducted and whether
the appropriate consultations had been made to deter
mine if the foreign states were willing to have the
material disclosed. He suggests that the respondents
have simply consulted with their counterpart agencies
in Britain and the United States and that they have
not consulted with the originating agencies of the
records that had been received in confidence. He
feels that only a cursory review of more than twenty
codes and more than 700 pages of records could have
been made during the three-day consultation with the
National Security Agency in February, 1985.
The applicant submits that the records at issue and
the severed portions thereof were not received in con
fidence or that they are no longer confidential. He
suggests that an indiscriminate exemption has been
applied to all codes of the belligerent nations during a
time when neither British nor American intelligence
services were providing Canada with confidential
information on these codes and he submits that codes
utilized by belligerent governments do not constitute
"information received in confidence". Furthermore,
with the dissolution of the belligerent governments at
the conclusion of hostilities in 1945 and the fact that
some of these codes have been disclosed to the public
by the United States Federal Bureau of Investigation
and State Department, the applicant states that any
expectation of injury has been considerably reduced.
The applicant suggests that security and intelli
gence records should not be indefinitely withheld
from disclosure particularly when other government
records stored in the National Archives are only
withheld for a period of up to 30 years. He submits
that other historians have in the past been granted
access to records on a discretionary basis and that
since he, too, is an historian, the same form of access
should be extended to him. The applicant notes that
Yardley died more than 35 years ago and he states
that the decision to replace Yardley as director of the
Examination Unit was the result of a hostile attitude
and vindictive attack against his character and cryp-
tographic abilities by agents of the British and Amer-
ican security organizations. He suggests that, with the
passage of time and the death of Yardley and these
agents, there is no longer a reasonable expectation of
injury to "national defence" or "international rela
tions". As well, according to the applicant, interests
would be better served if the historical realities and
the truth concerning Yardley's reputation and profes
sional abilities were revealed.
Finally, in his affidavit dated December 13, 1984
the applicant submits that the exemptions claimed
should be "specific" and not a mere "generality".
Accordingly, the specific sub-paragraphs of section
15 that have been relied upon should have been indi
cated. He also suggests, at paragraph 8 of his affida
vit, that a section 15 exemption can only occur when
all of the sub-paragraphs apply to all of the records as
a whole.
Respondents' submissions
Counsel for the respondents states that it is self-
evident that information obtained from allies with
respect to military intelligence is exchanged in confi
dence, especially during times of war. She submits
that the supplementary secret affidavits of Ronald
Browne and Patrick Griffith, DND Director General
of Signals Intelligence, Communications and Secur
ity Establishment, filed in accordance with sections
47 and 52, address the nature of the information at
issue and the confidential relationship in question.
The supplementary secret affidavit of Cleeve Francis
Wilfred Hooper, a former Special Adviser in the
Security Services Bureau of External Affairs, details
why it is important to maintain this confidential rela
tionship and to respect the request of a foreign gov-
ernment or government agency that information pro
vided by it be maintained in confidence.
Counsel observes that a government institution is
obliged to refuse to disclose personal information
about individuals unless one of the exemptions in
subsection 19(2) applies and she states that, to the
best of the knowledge and information of those
charged with the processing of this request, none of
the exceptions apply to the personal information
which has been exempted.
With respect to the section 15 exemptions, counsel
states that the supplementary affidavit of Mr. Browne
reviews the information and provides a detailed
index of the application of section 15 and the reasons
for that application to each piece of information
exempted from disclosure. In addition, the supple
mentary affidavits of Mr. Griffith and Mr. Hooper
review the reasons for the application of section 15
and discuss those reasons with specific reference to
the information in question. Counsel submits that the
application of the provisions of section 15 requires an
intimate and extensive knowledge of the "larger pic
ture" in which the information was originally col
lected or that exists today. The reasons for the view
that the release of information might reasonably be
expected to result in the injury contemplated by sec
tion 15 are not always readily apparent to the layman
and she suggests that Mr. Hooper and Mr. Griffith are
individuals with extensive experience and expertise
in the areas of international relations and intelligence
and security and that their views ought to prevail over
those of the applicant who is not a recognized expert
in the area.
ANALYSIS
For ease of reference, the 788 pages of documents
were numbered consecutively and for each page
number, the exemption provision(s) was provided. As
a preliminary matter, it is evident from paragraphs 8
and 11 of the affidavit of Ms. Maruschak that in
many instances more than one exemption has been
claimed with respect to the severance of information
contained in a record or part thereof. It would appear
that when either or both of sections 13 and 19 are
invoked and the Court is satisfied that they indeed
apply, it is not necessary to address the issue of a sec
tion 15 exemption if also raised with respect to the
same severed information. However, if only section
15 is invoked, then the reasonableness of the head of
the government institution's expectation of injury
must be considered.
Section 13 Exemption
The nature of the confidential relationship between
governments and the importance of this relationship
in international affairs has been considered by the
Australian Administrative Appeals Tribunal in Re
Throssell and Australian Archives (1986), 10 ALD
403. In Re Throssell Davies J., President, reviewed a
denial of the applicant's request for access to docu
ments containing information relating to the appli
cant and his mother which had emanated from an
overseas security organization. Paragraphs 33(1)(a)
and (b) of the Archives Act 1983 (Cth) had been
invoked by the respondent to justify the denial:
33. (1) For the purposes of this Act, a Commonwealth
record is an exempt record if it contains information or matter
of any of the following kinds:
(a) information or matter the disclosure of which under this
Act could reasonably be expected to cause damage to the
security, defence or international relations of the Common
wealth;
(b) information or matter communicated in confidence by or
on behalf of a foreign government an authority of a foreign
government, or an international organization to the Govern
ment of the Commonwealth, to an authority of the Common
wealth or to a person receiving the communication on behalf
of the Commonwealth or of an authority of the Common
wealth, being information or matter the disclosure of which
under this Act would constitute a breach of that confidence.
[Emphasis added.]
Upon examination of the documents at issue, Davies
J. [at page 405] found that they contained informa
tion supplied in confidence by an overseas security
organization the release of which, against the wishes
of the originator, would be regarded by the originator
as a breach of confidence. However, he held that for
there to be an actual breach of confidence under para
graph 33(1)(b) there had to be a "continuing relation
ship of confidence" and he concluded that because
the documents at issue were of historical interest only
with no current confidentiality, paragraph 33(1)(b )
did not apply. He did find, however, that the disclo
sure of documents communicated in confidence by
an overseas security organization which had not con
sented to disclosure, could reasonably be expected to
cause damage to Australia's international relation
ships under paragraph 33(1)(a). He referred to Re
Maher and Attorney-General's Department (1985), 7
ALD 731 (Adm. App. Trib.) wherein he had dealt
with the nature of damage under paragraph 33(1)(a)
and found that "there must be cause and effect which
can reasonably be anticipated" and he concluded [at
pages 406-407]:
I there [Re Maher] referred to the need for co-operation
between agencies of different governments, to the sensitive
nature of the communications which must pass from the one to
the other and to the relationships which develop therefrom.
Security is a particularly sensitive area and particularly depen
dent for its effectiveness upon an adequate flow of informa
tion.
In the present case, the disclosure of the documents which
were communicated in confidence from the overseas security
organisation to the Australian security organization and to the
release of which the overseas security organization has not
consented is a matter which reasonably could be expected to
cause damage to the relationships between the two security
organizations and therefore to Australia's international rela
tionships.
Here, unlike in Re Throssell, there is no discretion
to read in a requirement that there be a continuing
confidentiality about the material at issue. The head
of a government institution must simply determine
whether the information was obtained in confidence
under subsection 13(1) and, if so, must refuse to dis
close the record unless the exemptions apply. Excep
tions are specifically provided in subsection 13(2)
which, in essence, determine when the material is no
longer "confidential" for the purposes of section 13.
The mandatory nature of this exemption, therefore, is
set aside only where the other government or organi
zation consents to disclosure or has itself made the
information public. As well, unlike paragraph
20(1)(b) of the Act 2 which specifically provides for a
consideration of whether the information has main
tained its confidential nature, section 13 simply
requires a consideration of whether the information at
issue, when it was received, was confidential.
Section 19 Exemption
Personal information under section 19 is defined
with reference to section 3 of the Privacy Act. In
Canada (Information Commissioner) v. Canada (Sec-
retary of State for External Affairs), [1990] 1 F.C.
395 (T.D.), Dubé J. discussed the schemes, objects
and interrelationship between the Privacy Act and the
Access to Information Act. He commented [at page
401]:
It is therefore appropriate at this stage to review section 2 of
the Access to Information Act which outlines the purpose of the
Act, namely to extend the present laws of Canada to provide a
right of access to information in government records in accor
dance with the principles that government information should
be available to the public and that necessary exceptions
"should be limited and specific". The purpose of the Privacy
Act is also outlined in its section 2, which provides that the
purpose of the Act is to protect the privacy of individuals with
respect to personal information about themselves held by gov
ernment.
Reading both sections together, it is clear that the rule is to
provide information to the public and the exception is personal
information.
It appears clear to me that the object of the two acts, read
together, is that information shall be provided to the public,
except personal information relating to individuals.
With the above in mind, information must clearly
fit within and not be exempted by the relevant
paragraphs of section 3 of the Privacy Act or subsec
tion 19(2) of the Act before it can be withheld. In
2 20. (1) Subject to this section, the head of a government
institution shall refuse to disclose any record requested under
this Act that contains
(b) financial, commercial, scientific or technical informa
tion that is confidential information supplied to a
government institution by a third party, and is treated con
sistently in a confidential manner by the third party.
[Emphasis added.]
fact, subsection 19(1) provides that in such circum
stances, it "shall" be withheld. The Act does not pro
vide for a discretion to release information on the
basis of how long ago it was obtained. It does not say
that a document ought to be revealed after 30 years or
if the applicant has a good reason for requesting the
information. The fact that Yardley has been dead now
for 35 years and the circumstances of his dismissal
almost 50 years ago are simply not relevant to the
question of whether personal information concerning
individuals other than Yardley should be disclosed
unless that individual has been dead for more than
twenty years or has consented to the release of the
information. I recognize the difficulty that may be
presented in attempting to ascertain whether these
exceptions apply. However, in my opinion, it would
not be sufficient for the head of a government institu
tion to simply state that they are unaware or that they
do not know if the exceptions apply. Rather, they
should be in a position to state what activities and
initiatives were undertaken in this regard.
Section 15 Exemption
The applicant's argument that the section 15
exemptions should have been more specific has no
merit. In Canada (Information Commissioner) v.
Canada (Minister of National Defence), [1990] 3
F.C. 22 (T.D.), Madam Justice Reed considered the
content of the notice which must he given when a
refusal to grant access to documents is issued. She
found that although subsection 10(1) requires the
Minister to state the specific provisions of the Act on
which his refusal was based, he is not required to
state the specific category of documents listed in the
paragraphs. She observed [at pages 29 - 30]:
The test is one of injury, or probable injury. The descriptive
paragraphs which follow are illustrative only. They are a non-
exhaustive description of the kinds of documents the disclosure
of which might be found to be injurious to the specific interests
listed.
In my view, what is required, in the context of section 15, is
that the requester be given notice as to whether the reason for
refusal is because a disclosure would be (1) injurious to the
conduct of international affairs, or (2) injurious to the defence
of Canada or any state allied or associated with Canada, or (3)
injurious to the detection, prevention or suppression of subver
sive or hostile activities.
The respondents rely on the decision of the United
States Supreme Court in Central Intelligence Agency
v. Sims, 471 U.S. 159 (1985); 85 L Ed 2d 173; 105 S
Ct. 1881, to suggest that the Court here should defer
to the expertise of the deponents of the secret affida
vits. In that case, the Central Intelligence Agency (the
"CIA") withheld the names of MKULTRA research
ers on the basis of §102(d)(3) of the National Secur
ity Act of 1947, 61 Stat. 498, 50 USC §403(d)(3) [50
USCS §403(d)(3) (1982)] which provides that "the
Director of Central Intelligence shall be responsible
for protecting intelligence sources and methods from
unauthorized disclosure." The Supreme Court
reversed the lower courts' decision that the informa
tion was subject to disclosure if the Agency did not
offer sufficient proof that it needed to cloak its efforts
in confidentiality in order to obtain the type of infor
mation provided by the researcher. Chief Justice Bur
ger, delivering the majority concurring opinion,
stated [at page 187 L Ed 2d]:
The Court of Appeals underestimated the importance of pro
viding intelligence sources with an assurance of confidentiality
that is as absolute as possible. Under the court's approach, the
Agency would be forced to disclose a source whenever a court
determines, after the fact, that the Agency could have obtained
the kind of information supplied without promising confidenti
ality. This forced disclosure of the identities of its intelligence
sources could well have a devastating impact on the Agency's
ability to carry out its mission.
He considered the history of the legislation at issue
and found that Congress had clearly intended to give
the Director of the CIA broad power to protect the
secrecy and integrity of the intelligence process. He
also commented on the nature of the intelligence pro
cess and the factors that must be considered in deter
mining whether it is reasonable to disclose the infor
mation [at page 184 L 2d]:
The reasons are too obvious to call for enlarged discussion;
without such protections the Agency would be virtually impo
tent.
Witnesses with broad experience in the intelligence field testi
fied before Congress concerning the practical realities of intel
ligence work. Fleet Admiral Nimitz, for example, explained
that "intelligence is a composite of authenticated and evaluated
information covering not only the armed forces establishment
of a possible enemy, but also his industrial capacity, racial
traits, religious beliefs, and other related aspects."
[at pages 187-188] We seriously doubt whether a potential
intelligence source will rest assured knowing that judges, who
have little or no background in the delicate business of intelli
gence gathering, will order his identity revealed only after
examining the facts of the case to determine whether the
Agency actually needed to promise confidentiality in order to
obtain the information.... Moreover, a court's decision
whether an intelligence source will be harmed if his identity is
revealed will often require complex political, historical, and
psychological judgments.... There is no reason for a poten
tial intelligence source, whose welfare and safety may be at
stake, to have great confidence in the ability of judges to make
those judgments correctly.
[At pages 189-191] Here the Director concluded that disclo
sure of the institutional affiliations of the MKULTRA research
ers could lead to identifying the researchers themselves and
thus the disclosure posed an unacceptable risk of revealing
protected "intelligence sources." The decisions of the Director,
who must of course be familiar with "the whole picture," as
judges are not, are worthy of great deference given the magni
tude of the national security interests and potential risks at
stake. It is conceivable that the mere explanation of why infor
mation must be withheld can convey valuable information to a
foreign intelligence agency.
The national interest sometimes makes it advisable, or even
imperative, to disclose information that may lead to the iden
tity of intelligence sources. And it is the responsibility of the
Director of Central Intelligence, not that of the judiciary, to
weigh the variety of complex and subtle factors in determining
whether disclosure of information may lead to an unacceptable
risk of compromising the Agency's intelligence-gathering pro
cess.
Although not binding upon this Court, the decision
in Sims is useful to illustrate the legitimate concerns
raised by the respondents in the area of injury to
international affairs. However, unlike the legislation
in Sims, the statute here does not give the head of the
government institution absolute discretion to with
hold information although I do note that the United
States Supreme Court ultimately embarked upon a
consideration of whether the Director had "reasona-
bly concluded" that the information should be with
held, albeit with deference to his opinion.
The question of injury has also been considered in
Canada in the context of another statute. In Goguen v.
Gibson, [ 1983] 1 F.C. 872, Thurlow C.J. considered
an objection under subsection 36.1(1) [now section
37] of the Canada Evidence Act, R.S.C. 1970, c. E
10, as am. by S.C. 1980-81-82-83, c. 111, s. 4, to the
disclosure of information on grounds of injury to
national security and international relations. Section
36.1 provided:
36.1 (1) A Minister or the Crown in right of Canada or other
person interested may object to the disclosure of information
before a court, person or body with jurisdiction to compel the
production of information by certifying orally or in writing to
the court, person or body that the information should not be
disclosed on the grounds of a specified public interest.
(2) Subject to sections 36.2 and 36.3, where an objection to
the disclosure of information is made under subsection (1)
before a superior court, that court may examine or hear the
information and order its disclosure, subject to such restric
tions or conditions as it deems appropriate, if it concludes that,
in the circumstances of the case, the public interest in disclo
sure outweighs in importance the specified public interest.
Thurlow C.J. specifically addressed the "Importance
of Public Interest in National Security and Interna
tional Relations", and factors such as the age of
information, from whom it was obtained and in what
circumstances. He commented (at page 905):
In national security matters and international relations,
secrecy is essential. The price in time and effort put forth to
assemble and sift information is high. The process is continu
ous. It is carried out in the interests of public safety. What is
purchased by the efforts expended is easily injured or lost by
publication of information that should be kept secret.
Further, though the information to which this application
applies is all at least ten years old, I do not think that its disclo
sure can on that account be regarded as any the less likely to
cause injury. As was pointed out in at least one of the cases
referred to, secrets relating to national security may require to
be preserved indefinitely. See Attorney-General v. Jonathan
Cape Ltd. and Others, [[1976] 1 Q.B. 752 at p. 770]. 1 should
think that the same would apply to secrets relating to interna
tional relations. The view expressed by Gibbs A.C.J. in Sankey
v. Whitlam [(1978), 21 A.L.R. 505 (H.C.), at p. 528], is to that
effect. In neither instance is a period of ten to twenty years of
much significance in reducing the likelihood of injury result
ing from disclosure.
Finally, I regard it as a circumstance to be taken into
account that Canada is not presently at war. If a state of war
existed I doubt that anyone would argue that the importance of
the public interest in national security was not greater than the
importance of the public interest in the administration of jus
tice for in a war situation the lives of all citizens may be in
jeopardy. That the country is not at war militates somewhat in
favour of the applicants but, in the present day state of interna
tional affair, political terrorism and subversion, not much. Eter
nal vigilance is as necessary as it always has been to maintain
the security of the nation. [Emphasis added.]
The reasoning of Thurlow C.J. was affirmed on
appeal, [1983] 2 F.C. 463 (C.A.), and Marceau J.A.,
further added [at page 480]:
... I think with the learned Chief Justice that in assessing the
validity and seriousness of the claim for public-interest immu
nity, "the circumstance of who it is that asserts the objection
and what his interest in and knowledge of the need for main
taining immunity from disclosure may have its bearing" (at
page 880). I will even add that, in my view, in matters of
national security, that circumstance may even be the most
forceful one, because of the expertise required to properly
assess the situation—an expertise a judge normally does not
have. [Emphasis added.]
My task here is to review the material, submissions
and evidence to determine whether the decision to
withhold under section 15 was reasonable. While the
expert opinions are useful, I am ultimately required
to form my own opinion to determine whether the
explanations provided for refusing to disclose are
reasonable. Furthermore, I am not mandated, as was
the Court in Goguen, to further consider and balance
the public interest in disclosure. The Act specifically
gives the Court discretion to disclose information if
the head of the government institution was not
authorized to grant an exemption or, in other words,
he did not have reasonable grounds upon which to
refuse disclosure under section 15. This contemplates
a substantive review.
CONCLUSION
After a thorough review of the 243 documents
which were completely exempted, the 132 pages or
records where information was severed, and several
other documents among those revealed to the appli
cant, I am satisfied that, other than as outlined below,
the respondents' decision to withhold or sever the
records should not be disturbed. Where section 13
has been invoked, the head has been authorized to
refuse to disclose the information. The evidence
before me indicates that appropriate consultations
had indeed been made with the foreign states or insti
tutions, that the information was received in confi
dence, and that the foreign states or institutions have
not consented to the disclosure of the information.
Likewise, where section 19 has been invoked, I am
satisfied that the documents contained personal infor
mation within the relevant paragraphs of section 3 of
the Privacy Act, and that the exceptions listed in sub
section 19(2) do not apply. Finally, where section 15
has been invoked, I am satisfied on the basis of the
secret supplementary affidavits filed on behalf of the
respondents, that the head of the government institu
tion had reasonable grounds to refuse to disclose the
records or parts thereof as the disclosure could rea
sonably be expected to be injurious to the conduct of
international affairs.
To respond to the remaining arguments raised by
the applicant, there is simply insufficient evidence to
conclude that preferential access has been granted to
other historians. In any event, I find no basis upon
which the head of the government institution could
accord such treatment to other historians, other than
the exemption provisions set out in the statute.
As indicated previously, the respondents have pro
vided one or more exemption provisions with respect
to each record or severed portion thereof and have,
through secret affidavits, attempted to explain and
justify the rationale behind each exemption. I have
considered each record, together with the explanation
provided and have, based on the information before
me, determined that the decision to withhold was
properly made in all but one circumstance. Where I
had doubt, I sought additional clarification from
counsel for the respondents and I am satisfied that,
but for records numbered 0616 and 0617, this appli
cation for review must be dismissed.
On these documents, information concerning the
names, position titles and date of hiring of individu
als hired post-1942 was severed. The respondents
have exempted this information on the basis of sec
tion 15 but have indicated that it was severed because
the information, which is post-1942, was not relevant
to the applicant's request for information about the
Examination Unit during the "Yardley period", 1941-
42. The fact that information is not directly related to
an access request is not a basis for exemption under
the Act and, in the light of the considerations outlined
above with respect to a section 15 exemption, I am
not satisfied that the respondents had reasonable
grounds to refuse to disclose the names, position
titles and date of hiring of individuals hired post
1942 although I do recognize that the other severed
portions of these records were appropriately
exempted under section 15.
Accordingly, the application is allowed in part
without costs to either party.
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