Federal Court

Privacy and Freedom of Information

Freedom of information

Federal legislation

Access to Information Act requiring access requests to be made to relevant government institution

Applicant was criminologist whose research required making requests of federal agencies to use requested documents in research and as part of his research on how such requests are processed and governed. He had interest in penal policy. Applicant made request under Access to Information Act addressed to Access to Information co-ordinator at Department of Public Safety (DPS) seeking documents relating to Correctional Services Canada review panel. DPS and Commissioner of Corrections were presided over by Minister of Public Safety and Emergency Preparedness (Minister). Precipitating event causing applicant to file access request was refusal of Secretariat of review panel to allow applicant to interview panel members before completion of report. Upon being advised that there were no relevant records in department, applicant filed complaint with office of Information Commissioner, and, 18 months later, office of Information Commissioner advised that thorough investigation of departmental records had been completed. Additional information contained in letter of Office of Information Commissioner indicated that Correctional Services Canada may have control of records responsive to request and that although Public Safety should have considered transferring request to Correctional Services Canada in accordance with s. 8 of Act, this was not done. Applicant argued that since both DPS and Correctional Services Canada operated under same portfolio, Minister in charge of portfolio had control of documents as defined by case law under Act (portfolio argument). Applicant applied for judicial review. Application dismissed. Whether standard of review was one of correctness or whether it was independent assessment of evidence, question was whether or not DPS controlled records. To apply control argument at portfolio level was to ignore scheme of Act. Based on wording of legislation, particularly, definition of government institution, and case law, it could not be found that Minister’s control of portfolio of government agencies was determinative and to find otherwise was misinterpretation of Act. Ability to control record at portfolio record was not determinative of matter as portfolio was not government institution. Act is structured to establish separate government institutions and to require access requests to be made to relevant government institution.

Yeager v. Canada (Minister of Public Safety and Emergency Preparedness) (2017), 2017 CarswellNat 6056, 2017 CarswellNat 958, 2017 FC 330, 2017 CF 330, E. Susan Elliott J. (F.C.).

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