Case Summary and Outcome

The Supreme Court of Canada combined issues from four lower federal court appeals primarily regarding the meaning of the terms “government institution” and “control” within Canada’s Access to Information Act. The Court found that the offices of ministers and the Prime Minister’s office are distinct entities from the government departments over which the offices preside, and therefore, they are not “government institution[s]” within the meaning of the Act. However, the Court further found that government institutions can have “control” over documents produced in the offices of ministers so long as (1) “the contents of the records relate to a departmental matter,” and (2) “the circumstances in which the documents came into being show that the deputy minister or other senior officials in the department could request and obtain copies to deal with that subject matter.”

Facts

In 2008, Canada’s Information Commissioner (Commissioner) brought four actions to compel the release of certain documents from the Prime Minister’s office and the Minister of Defense under the Access to Information Act (the Act). In the first three cases (requesting information from the Prime Minister), the Commissioner asked the Federal Courts to determine the meaning of “under the control” within the Act. In the fourth case, the Commissioner asked the Court to determine whether the offices of the Prime Minister and the Minister of Defense could be considered “government institutions” within the meaning of the Act. The Supreme Court consolidated the cases and decided the two issues.

Decision Overview

The Commissioner asked the Supreme Court of Canada to decide two issues: (1) whether the offices of the Prime Minister and the offices of other ministers (e.g. the Minister of Defense) could be considered “government institutions” within the meaning of the Act, and (2) whether documents produced in the offices of ministers, regardless of whether the offices themselves could be considered “government institutions,” could be considered “under the control” of government institutions within the meaning of the Act.

As to the first issue, the Court found that the offices of ministers could not be considered “government institutions” within the meaning of the Act. The Court reasoned that, although the Prime Minister and other ministers oversee the operations of the institutions, which could be considered “government institutions,” the offices of ministers are separate and distinct offices from the institutions that ministers oversee.

As to the second issue (the meaning of “under the control” within the Act), the Court considered a long line of Canadian jurisprudence, and concluded that the meaning of “control” hinged on whether (1) “the contents of the records relate to a departmental matter,” and (2) “the circumstances in which the documents came into being show that the deputy minister or other senior officials in the department could request and obtain copies to deal with that subject matter.” The Court concluded that some, not all, of the documents requested by the Commissioner met these two criteria, and accordingly, the Court ordered the disclosure of only the documents that satisfied the Court’s new “control” test for the Act.