Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
Closed Expands Expression
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The Canadian Federal Court of Appeal held that the Minister of Environment may not refuse access to discussion papers on the safety and regulatory treatment of a fuel supplement under Section 21(1)(a) (advice and recommendations), (b) (consultations and deliberations) and Section 23 (solicitor-client privilege) of the Access to Information Act (ATI Act). The Court reasoned that disclosure was appropriate because the Minister had failed to provide any reasons that would justify granting it a fresh opportunity to invoke further exemptions and, further, that the integrity of the government’s decision-making process was not compromised by the release of the information.
This case analysis was contributed by Right2Info.org.
In September 1997, Ethyl Canada Inc. (Ethyl) requested the Minister of Environment under Section 6 of the Access to Information Act (ATI Act) access to certain discussion papers on the safety and regulatory treatment of Methylcyclopentadienyl Manganese Tricarbonyl (MMT), a fuel supplement, that had been presented by the Minister to Cabinet in 1995 (para. 4).
The Minister refused access to four records on the ground that they were excluded from the scope of the ATI Act under Section 69(1)(a) and (e), since they constituted “confidences of the Queen’s Privy Council for Canada”. After the Commissioner’s initial report and a federal court judgment had ordered disclosure, the Minister disclosed some documents but with regard to others claimed additional exemptions under Section 21(1)(a) (advice and recommendations) and (b) (consultations and deliberations) and Section 23 (solicitor-client privilege) of the ATI Act. The Commissioner’s second report concluded that the portions of the MMT report withheld under paragraphs 21(1)(a) and (b) of the ATI Act were not exempt and recommended that the Minister disclose the corresponding portions. The Minister rejected the Commissioner’s recommendation to disclose additional information.
In the Federal Court of Appeal, the Minister argued that the remaining portions of the document should be returned to the Minister to give him a chance to invoke further exemptions. The Court relied on Section 49 of the ATI Act and ordered disclosure. Section 49 of the ATI Act allows the Court to order the disclosure of requested records in two circumstances: “First, […] when it determines that the head of the government institution was not authorized to refuse its disclosure, which is not the case in the present situation. Second, the Court can also make any other order as it deems appropriate.”
The Court found that disclosure was appropriate under Section 49 of the ATI Act because the Minister had failed to provide any reasons that would justify granting it a new opportunity to make a determination of whether a portion of the document was exempt from disclosure under the ATI Act. After the Court reviewed the sentences and fragments withheld, it determined that the integrity of the government’s decision-making process was not compromised by the release of the information and ordered full disclosure of the document.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression by curtailing the government’s power to refuse disclosure in circumstances where its decision-making process isn’t compromised.
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