Annual Report: 2004-2005

The complaint arose from the Privy Council Office’s (PCO) responses to six access requests for former Prime Minister Chrétien’s agendas. Each request covered a different period of time; collectively, they covered the period from January 1994, to June 25, 1999. With respect to five of the requests, PCO informed the requester that it held no agendas. PCO did not inform the requester that the requested agendas were held by the Prime Minister’s Office (PMO) – but that is where they were held.

With respect to one request, most of the relevant records were held in the PMO, but some were also held in the office of the then Clerk of the Privy Council, Mel Cappe. In its response to this request, PCO refused to confirm or deny whether it held any agendas saying only that if it did, they would qualify for exemption as the Prime Minister’s personal information.

After the complaint was made to the Information Commissioner, and the investigation began, PCO clarified its reasons for refusal to disclose the requested agendas. With respect to the agendas held in the PMO, the PCO position was that they were not subject to the right of access because only the PCO, not the PMO, is subject to the Access to Information Act.

With respect to the agendas found in the PCO (which were clearly subject to the right of access), the refusal to disclose was based on subsection 19(1) of the Act, in order to protect the privacy of the Prime Minister.

It was not until much later in the investigation that PCO invoked section 17 of the Act, arguing that disclosure of the agendas, in whole or in part, could reasonably be expected to threaten the safety of the former Prime Minister and his protective detail. PCO also took the position that disclosure of any part of former Prime Minister Chrétien’s agendas would pose a threat to the safety of Prime Minister Martin.

Some portions of the agendas were also claimed to constitute cabinet confidences which would be excluded from the right of access under section 69 of the Act.

During the investigation, PCO ceased reliance on the provision in the Act pursuant to which it had refused to confirm or deny that PCO held some copies of the Prime Minister’s agendas.

1. Are the agendas of the Prime Minister, which are held on the premises of the PMO, under the control of the PCO for the purposes of the right of access set out in section 4 of the Access to Information Act?

2. If so, may the agendas, in whole or in part, be exempted or excluded from the right of access under sections 19 (privacy), 17 (safety of individuals) or 69 (cabinet confidences) of the Act?

3. Are the agendas of the Prime Minister, which were held in the PCO at the time of the request, exempt from the right of access, in whole or in part, under sections 19, 17 or 69 of the Act?

With respect to the first issue, the Information Commissioner concluded that the agendas held in the PMO were under the control of the PCO for the purposes of section 4 of the Act. He also concluded that the Prime Minister is an officer of the PCO. In coming to those conclusions, the commissioner assessed the same factors described previously in case summary #1.

With respect to the second and third issues, the commissioner concluded that section 17, 19 and 69 had been improperly invoked. In this regard, he relied on the same analysis as described in case summary #2.

The investigation determined that the agendas of the former Prime Minister were not maintained in a manner which reflected their status and importance as records of archival importance to Canada.

The commissioner found that there were no procedures in place or followed to ensure that accurate and complete agendas for each day were created, and archived for eventual, mandatory transfer to the National Archives. Thus, he concluded the existing version of the agendas of the former Prime Minister is inaccurate and incomplete. Since prime ministerial agendas are historically significant, created and maintained at taxpayer expense and concern official functions, the commissioner found these shortcomings in records management practices to be profoundly troubling.

For all these reasons, the Information Commissioner recommended to Prime Minister Martin that the requested agendas be disclosed, subject only to exemptions to protect entries unrelated to the prime ministerial functions of the former Prime Minister. The commissioner also recommended that a plan for the proper management of prime ministerial agendas be developed with the National Archivist of Canada and the Information Commissioner.

Prime Minister Martin refused to accept the commissioner’s recommendations. Thus, with the consent of the requester, the commissioner will ask the Federal Court of Canada to review the refusal by PCO to disclose the requested records.