Annual Report: 2002-2003

The strong guidance provided by the Supreme Court in Babcock has direct implications for access to information requesters and for the Information Commissioner during complaint investigations. Five groups of complaints had been set aside, pending the judgements in Babcock and Ethyl. They are:

1) complaints where inadequate information was provided to the commissioner to establish on its face that the withheld information is a cabinet confidence;

2) complaints where the severance requirements of the Access Act (section 25) may not have been properly applied to disclose background explanations, problem analysis and policy options presented to Cabinet for making decisions (information subject to the right of access by paragraph 69(3)(b) per Ethyl Canada);

3) cases where the content of the withheld records may have already been made public;

4) cases where there may not have been an exercise of discretion, as required by Babcock concerning whether the need for cabinet secrecy outweighs the public interest in legitimate public inquiry; and

5) cases where the provisions of section 69 may have been interpreted in an overly broad fashion to withhold information which does not reveal the deliberations of Cabinet, such as:

1) the fact that one minister wrote to another on a topic;

2) the fact that one minister met another minister or the Prime Minister on a certain day, time and place; and

3) the fact that Cabinet met on a certain day, time and place.

Some progress has been made in addressing these five problem groups. With respect to the first group, the Privy Council Office has offered a six-month trial during which it would provide to the Information Commissioner the same descriptive details about confidences withheld pursuant to section 69 of the Access to Information Act which Babcock requires be disclosed in a certificate pursuant to section 39 of the Canada Evidence Act. With respect to group 2, the government has decided not to appeal the Ethyl Canada decision and, hence, will proceed to sever and disclose the records or portions of records which have the purpose of presenting to Cabinet background explanations, analysis of problems and policy options.

With respect to groups 3-5, discussions are being held between the Office of the Information Commissioner and the Privy Council Office. The difficulty at the heart of these discussions is how to develop an efficient section 69 review and advice process which respects the Babcock requirements (especially the proper exercise of discretion) without the necessity for the Information Commissioner to use his order powers to trigger the formal certification process under the Canada Evidence Act.

The challenges to changing long-standing practices and mind-sets, with respect to cabinet secrecy, should not be underestimated. The revolution in thinking about cabinet secrecy occasioned by Babcock and Ethyl will change not only the types of information available to the public but, also, the information which public officials may provide to parliamentary committees concerning the details of government's decisions, actions and expenditures.