Annual Report: 2002-2003

A. JUDICIAL GUIDANCE

1) The Assertion of Cabinet Confidence to Justify Secrecy

The first application of the Babcock decision to a case under the Access to Information Act came in the case of Canada (Information Commissioner) v. Canada (Minister of the Environment). By way of background, the case began with an access request by Ethyl Canada to Environment Canada for records relating to the government's decision, in 1995, to introduce legislation banning the inter-provincial trade and import of a gasoline additive known as MMT. Ethyl Canada requested access to:

"Discussion papers, the purpose of which is to present background explanations, analysis of problems or policy options to the Queen's Privy Council for Canada for consideration by the Queen's Privy Council for Canada in making decisions with respect to Methylcyclopentadicmyl Manganese Tricarbonyl (MMT)".

The wording of this request was significant because it used the precise words of a provision of the Access to Information Act which limits the ability of government to assert the cabinet confidence privilege. Once cabinet decisions are made public, paragraph 69(3)(b) of the Act provides that "discussion papers, the purpose of which is to present background explanations, analysis of problems or policy options to (Cabinet). . ." are no longer excluded from the right of access.

Despite the wording of the request, and the specific wording of the access law, the government refused to disclose the information. It argued that "discussion papers" had been abandoned in 1984 as a vehicle for presenting background, analysis and options to Cabinet. The Clerk of the Privy Council certified that all other records containing such information with respect to MMT constitute cabinet confidences.

The Information Commissioner, after an investigation into the history of the cabinet papers system and why discussion papers were abandoned as soon as the access law came into force, concluded that the Clerk of the Privy Council had no lawful authority to refuse disclosure of background, analysis and options information with respect to the decision to ban MMT. The government disagreed and the matter went before the Federal Court, Trial Division. The court agreed with the Information Commissioner and ordered the Clerk of the Privy Council to disclose the information. The government appealed and, this year, the Federal Court of Appeal dismissed the government's appeal.

First, Justice Noel, for the Court of Appeal, dismissed the government's contention that courts may not review decisions by government, under the Access to Information Act and Canada Evidence Act, to assert cabinet confidence. The court stated: "The judgement in Babcock makes it clear that the courts can review decisions which 'do not flow from statutory authority clearly granted and properly exercised' and may consider 'surrounding evidence' to determine whether statutory power has been properly exercised". (paragraph 20 - Ethyl Canada case).

Further, the court concluded that the "surrounding evidence", uncovered during the Information Commissioner's investigation, supported the view that "discussion papers" could be found elsewhere in the cabinet papers system either incorporated into, or appended to, other records such as memoranda to Cabinet or briefs to ministers.

Accordingly, the Court of Appeal ordered the Clerk of the Privy Council to review the withheld records to determine:

"a) whether there exists within or appended to the documents a corpus of words the purpose of which is to present background explanations, analyses of problems or policy options to Council for consideration by Council in making decisions, that can be reasonably severed from the documents pursuant to section 25 of the Access Act;

b) if such severable corpus of words is found to exist by the Clerk of the Privy Council, it is hereby ordered that it be severed and released to the applicant subject to any exemption which may be claimed by the head of the government institution." (paragraph 27 - Ethyl Canada)