Canada's Information Commissioner Will Appeal Significant Federal Court Ruling

Canada's Information Commissioner (Commissioner) has appealed a decision of the Federal Court that, in the Commissioners' view, substantially restricts the application of the Access to Information Act (Act) to records held by officials within the offices of federal Cabinet Ministers. The decision of the Federal Court at issue was released on June 19, 2008 and was heard and decided together with similar proceedings against the Prime Minister, the RCMP and the Minister of Transport. In his 95-page reasons for judgment (plus annexes), Justice Michael Kellen held that the Act does not apply to records created by Minister's aides if the records are in the possession of the offices of the relevant Ministers, including that of the Prime Minister, whereas if those records are solely within departmental control, the Act does apply. In the view of the Commissioner, as expressed in a July 21 press release announcing the appeal, a record generated or obtained by a Minister relating to the administration of the Minister's department is subject to the Act, regardless of its location. Because Justice Kellen's reasons for judgment raise a wide range of basic legal principles, including rules of statutory interpretation, the role of junior officials in relation to Ministers of the Crown, and common law principles of Ministerial privilege, students of administrative law and of modern access-to-information legislation will await a decision of the Federal Court of Appeal with anticipation. For the full reasons for judgment in The Information Commissioner of Canada v The Minister of National Defence, 2008 FC 766, see: http://decisions.fct-cf.gc.ca/en/2008/2008fc766/2008fc766.html For the press release of the Commissioner, visit: http://www.infocom.gc.ca/pressreleases/preleaseview-e.asp?intPreleaseId=59 Summary by: The Editor