Annual Report: 2004-2005

The complaint arose from Transport Canada’s (TC) denial of an access request for a copy of former Minister Collenette’s agenda for the period June 1, 1999, to November 5, 1999. TC’s denial was expressed as follows:

"Please be advised that no records exist in Transport Canada’s files which respond to your request. It should be noted, however, that the Minister’s itinerary/meeting schedules are prepared and maintained by his political staff, and are not considered departmental records."

It was the practice of the former minister to routinely provide copies of his agendas to the deputy minister (with some personal items removed) to assist the deputy minister in properly serving the minister. It was the practice of the deputy minister to routinely destroy the agenda copies she received as soon as they went out of date. Thus, at the time of the access request, all records covered by the request were held in the minister’s office since the deputy minister’s copies had been destroyed.

The department argued that the right of access only extends to records under the control of the Department of Transport. It further argued that the office of the Minister of Transport, which held the agendas, is not a component part of the Department of Transport.

The requester, on the other hand, argued that the agendas were created, in part, to assist departmental officials in carrying out their duties and that where they were archived was immaterial. As well, the requester argued that a minister is a component part of the institution over which he or she presides and, hence, records held by a minister, which relate to the minister’s departmental duties, are under the control of the minister’s department.

The legal issues in this case, thus, were as follows:

1. Were the requested agendas (which were archived in the office of the Minister of Transport) under the control of the Department of Transport for the purposes of section 4 (the right to request access) of the Access to Information Act?

2. As a general principal, is the office of a minister a component part of the department over which the minister presides?

In coming to conclusions on these issues, the Information Commissioner also dealt with the subsidiary issue of whether or not the Minister of Transport is an officer of the Department of Transport.

The commissioner accepted the governing jurisprudence to the effect that the term "control" is to be given a broad meaning so as to confer a meaningful right of access, and that the physical location of requested records is not, in and of itself, determinative of the issue of control. Among the factors the commissioner took into account, to determine whether or not the requested agendas were under the control of the Department of Transport, were the following:

1. whether the individuals in possession of the relevant documents were employees or officers of an entity to which the Access to Information Act applies (i.e. a government institution);

2. whether there is evidence that the documents are, in fact, controlled by a government institution;

3. whether the content of the record relates to a government institution’s mandate and functions;

4. whether the record is closely integrated with other records held by a government institution;

5. whether the document was created during the course of duties remunerated from parliamentary appropriations of a government institution;

6. whether any officer or employee of a government institution has the right to use, preserve or dispose of the document;

7. whether, with respect to the document, an order for production could be enforced upon an officer or employee of a government institution;

8. whether communication of the content of the document requires the authorization of an officer or employee of a government institution;

9. whether there is a right of partial, transient, or de jure access to the document by an officer or employee of a government institution;

10. whether the document was created as part of the day-to-day administration of a government institution or to assist an officer or employee of a government institution to carry out his or her duties; and

11. whether there is a compelling reason of public policy militating for or against control.

After considering the legal and factual elements with respect to these factors, the commissioner concluded that the requested ministerial agendas were under the control of the Department of Transport for the purposes of section 4 of the Access to Information Act. In coming to that conclusion, the commissioner took into account the content of the records (significant portions of which relate to the minister’s duties as head of Transport Canada); the fact that the agendas were used, in part, to assist departmental officials in performing their duties; and the fact that departmental officials had authority to keep or destroy their copies of agenda records.

As well, the commissioner concluded that the Minister of Transport is an officer, and essential component, of the Department of Transport. The factors leading to this conclusion were:

1. The Department of Transport Act specifies that the Minister of Transport will preside over the department;

2. Constitutional experts agree that the Department of Transport, as all other portfolio departments, must have a minister because departments are extensions of the authority of their ministers;

3. The Access to Information Act provides that the Minister of Transport is head of his or her department for the purposes of the Act;

4. The Financial Administration Act (to which ministers’ offices and departments are subject) defines "public officer" to include minister;

5. The definition of "public officer" in the Interpretation Act includes the Minister of Transport;

6. In its ordinary meaning, "officer" of a government department includes the presiding minister; and

7. To conclude otherwise would lead to absurd results such as: allowing ministers to shield departmental records from the right of access by holding them in the minister’s office; allowing ministers to assert privacy rights with respect to information relating to their position and functions; and allowing ministers to escape accountability through transparency – a purpose ascribed to the Access to Information Act by the Supreme Court of Canada.

Consequently, the commissioner recommended that the requested agendas be disclosed, subject to justifiable exemptions to protect certain personal information contained in the agendas. The Minister of Transport disagreed with the commissioner’s findings and declined to follow his recommendations.

As a result, the commissioner, with the consent of the requester, will apply to the Federal Court for a review of the continuing refusal to disclose the requested records.