Annual Report: 2003-2004

3. Yes! You Can Have It On CD

Background

In October 2001, an articling student at a Vancouver law firm made an access request to Fisheries and Oceans Canada (F&O) for a CD-ROM copy of an electronic database (known as the Habitat Enforcement Database). The database contains court judgments arising from Fisheries Act prosecutions, case summaries of the judgments and information about the impact of the court decisions on future prosecutions.

In response, F&O refused to disclose the CD-ROM or any of its contents in any format, on the basis that the information requested was subject to solicitor-client privilege and, hence, exempt from the right of access, pursuant to section 23 of the Access Act.

In February 2002, the requester complained to the Information Commissioner about the matter. The complainant could not understand how a database comprised largely of publicly-known information, i.e. court decisions and summaries thereof, could qualify for solicitor-client privilege.

Early in the investigation, it became clear that the refusal to disclose the CDROM was based on two additional reasons which had not been communicated to the requester in the department’s response. First, the department’s refusal to disclose the text of court judgments was also based on section 68 of the Act, which excludes publicly available records from the right of access. Second, the department took the view that an access requester had no right to dictate the format in which information is disclosed. At the time of the request, the database existed in hard copy and in an internal on-line database, but it did not exist on CD-ROM.

Legal Issues

Three issues arose in this case: first, can court decisions and summaries thereof qualify for solicitor-client privilege? Second, can court decisions be withheld on the basis that they are published material and, hence, excluded from the right of access by section 68 of the Act. Finally, does an access requester have a right to request access be provided in a particular format?

The irony of the first two issues was not lost on the commissioner. The department argued both that court decisions are a matter of confidence and, at the same time, published material. The commissioner did not accept that the court decisions and summaries qualify for solicitor-client privilege. He found that this information is public and he noted that the decisions were not selected or presented as foundation for particular legal advice. They were simply a compendium of decisions on a particular topic. Consequently, he concluded that section 23 of the Act did not justify a refusal to disclose the database.

With respect to the second issue, the commissioner noted that, while court decisions are public, this national compendium of decisions is not published or available for purchase by the public. A requester would have to do a search in every court across Canada to compile the database and, in the commissioner’s view, the section 68 exclusion was not intended to force Canadians into that hardship to get access to a set of records which already exist in government files and which tax dollars paid to compile. Consequently, he concluded that section 68 of the Act did not justify the refusal to disclose the database.

With respect to the third issue, choice of format, the commissioner took note of the admission by F&O that the CD-ROM version can be easily and cheaply produced. He also took note of the decision of the Federal Court Trial Division in Yeager v. Correctional Service Canada, 2001 FCT 434. The court found that there was an obligation to create a record in a new format if, in the words of subsection 4(3) of the Act, the record "… is capable of being produced using the computer software and expertise normally used by CSC."

Consequently, the commissioner rejected the department’s contention that requesters have no right to obtain access to records in their preferred format.

The department accepted the commissioner’s views and disclosed a CD-ROM version of the Habitat Enforcement Database to the requester. Regrettably, from the date of the access request to the date of disclosure, two years had elapsed and all that delay for entirely non-sensitive information!

Lessons Learned

This is a classic case of a department looking for ways to say "no disclosure" rather than asking itself "why not disclosure." There was enormous information and negligible cost to put it on a CD-ROM; yet, for two years, the department insisted on secrecy.

An attitude of service to access requesters is the frame of mind the Access Act requires public servants to take in answering access requests. Parliament has made it an express obligation to create records from electronic databases if it is reasonably possible to do so. It is not open to public servants to dictate to access requesters the format in which they will receive access to government records.