Annual Report: 2004-2005

The complaint arose from the RCMP’s response to an access request for copies of the agendas of former Prime Minister Chrétien covering the period January 1, 1997, to November 4, 2000. The RCMP’s response to the access request was as follows:

"Based on the information provided in your request, we have conducted a search of our records in Ottawa, Ontario, and regret to inform you that we do not receive copies of the Prime Minister’s daily schedule. Such information is held by the Prime Minister’s Office."

During the investigation, some 386 pages of prime ministerial agendas, relevant to the access request, were found in the RCMP’s files. It was also determined that copies of the Prime Minister’s agendas were sent, every day, to the offices of the Prime Minister’s Protective Detail at RCMP headquarters. In other words, the RCMP’s response was entirely inaccurate.

The commissioner concluded that the RCMP’s failure to locate and process the agendas, and its positive assertion that the RCMP did not receive copies of the former Prime Minister’s agendas, was not the result of an intention to mislead the requester. Rather, he attributed the false response to carelessness on the part of the officer who undertook the search and failure by the RCMP’s access to information professionals to play a challenge and follow-up role with the Prime Minister’s Protective Services.

Once the records were located, the RCMP sent a second response to the requester, refusing to disclose the agendas, in whole or in part, for the following reasons:

"A review of the said records reveals that all of the information you have requested qualifies for exemption under section 19(1) and 17 of the Access to Information Act. Additionally, some information was excluded from access by virtue of section 69(1) of the Act."

Unlike the preceding and succeeding cases, involving agendas which were held in the offices of a minister and the Prime Minister, there was no dispute in this case as to whether the agendas were subject to the right of access – they clearly were. The RCMP is a government institution to which the Access to Information Act applies and the records were held on the premises of the RCMP headquarters under the daily control of RCMP officers.

The issues in this case were:

1. whether or not every entry on every page of these agendas constitutes "personal information" of the former Prime Minister or others which qualifies for exemption from the right of access under subsection 19(1) of the Act;

2. whether or not the entire contents of these agendas qualify for exemption under section 17 of the Act because, if disclosed, they could reasonably be expected to threaten the safety of the former Prime Minister, the present Prime Minister or their protective details;

3. whether or not certain entries constitute cabinet confidences; and

4. whether or not the RCMP discharged its obligation under section 25 of the Act, to sever and disclose any portion of the agendas which does not qualify for exemption or exclusion under sections 17, 19 and 69.

The RCMP admitted that, if the request had been for the agendas of the RCMP Commissioner, it would have severed and released the work-related portions of the agendas and withheld the portions relating to purely personal affairs.

The reason it would have taken such an approach is because paragraph 8(2)(j) of the Privacy Act restricts the zone of privacy for "officers and employees of a government institution". The RCMP Commissioner is an officer of the RCMP and, hence, may not assert privacy rights to refuse to disclose information relating to his position and functions.

The reason the RCMP did not take the same approach with the Prime Minister’s agendas is because, in the RCMP’s view, the Prime Minister is not an officer or an employee of any government institution and, hence, the Prime Minister’s zone of privacy is not restricted by paragraph 8(2)(j) of the Privacy Act.

The Information Commissioner rejected this argument, finding that the Prime Minister is an officer of the Privy Council Office (a government institution subject to the Act). The reasons in this regard are set out in the succeeding case summary.

Consequently, the Information Commissioner concluded that the portions of the Prime Minister’s agendas which relate to his position and functions as head of PCO, and/or which relate to public activities or events attended by the former Prime Minister, should be disclosed.

The RCMP argued that disclosure of any portion of the agendas – even public events or blank pages – could threaten the safety of both the former Prime Minister and the current Prime Minister. The RCMP argued that patterns of behaviour could be drawn from the agendas and used to plan attacks on the Prime Ministers. The RCMP also argued that it did not have to show that disclosure would pose a "probable" threat. Rather, it argued that it need only show that its concern in this regard is not frivolous or exaggerated – that it is reasonable.

The Information Commissioner found that the proper test is that of reasonable expectation at the level of a probability. However, he concluded that the RCMP had not discharged its burden to demonstrate that the likelihood of threat from disclosure is either probable or the lesser test of being non-frivolous or nonexaggerated. He concluded that the only patterns of behaviour, not already publicly known, which could be learned from the agendas, relate to routine and widely known meetings held by the former Prime Minister. No evidence was presented to show how knowledge of these patterns – which don’t involve moving or exposing the Prime Minister – would pose a risk to the former Prime Minister’s safety or the safety of his security detail. As well, no witness was able to demonstrate how disclosure of the agendas for days containing no scheduled events would meet the section 17 test.

The RCMP admitted that it has not assessed the security implications of disclosure in today’s context when Mr. Chrétien has left public life. The RCMP presented no evidence to support the contention that disclosure of the agendas of the former Prime Minister could pose a threat to the safety of Prime Minister Martin.

Portions of the requested agendas were withheld as constituting cabinet confidences. Since no subject-matter details were included in the agendas, the commissioner concluded that section 69 had been improperly applied. The mere fact that members of cabinet met at a certain date and time does not, in the commissioner’s view, constitute a cabinet confidence.

For the foregoing reasons, the Information Commissioner concluded that the RCMP’s decision to withhold the requested records in their entirety was unjustified. He recommended that the agendas be disclosed with the exception of information of a private character, such as medical appointments, family events and private receptions.

The RCMP Commissioner refused to accept the Information Commissioner’s recommendations. With the consent of the requester, the Information Commissioner will apply to the Federal Court of Canada for a review of the RCMP’s refusal to disclose the requested records.