Neutral Citation: 2001 FCT 434
MATTHEW G. YEAGER
- and -
CORRECTIONAL SERVICE OF CANADA AND
COMMISSIONER OF CORRECTIONS
REASONS FOR ORDER
 This application is for judicial review of a decision of the Correctional Service of Canada (CSC) found in a letter to the Applicant dated April 10, 1997 in which it denied his requests for access to information. These requests were made in two letters (together the ARequest@) of March 17, 1997 and submitted to CSC's Access to Information and Privacy Branch pursuant to the Access to Information Act, R.S.C. 1985, c.A-1 (the AAct@).
 In his Request the Applicant sought the following material for use on his personal computer:
a) the 1992-93 CSC release cohort currently being used to recalibrate the GSIR [General Statistical Indicator of Recidivism] with personal identifiers deleted (such as name of inmate/parolee, FPS number, or full date-of-birth, however year of birth will not violate privacy). This data will be referred to as the ARequested Data@.
b) The Code Book used to define and identify/locate the variables in each case. This item will be referred to as the ACode Book@.
c) A copy of the Offender Intake Assessment software (current version in operation), which includes the: Custody Rating Scale (CRS), the GSIR, and the Community Risk/Needs Management Scale, among other features. These items will be described collectively as the ASoftware@.
 I should observe that, although the Requests are clear, the record is sometimes confused because the Applicant asked for other material and was given some other material before he made the Requests under the Act which are the subject of this application.
 The relevant provisions of the Act are as follows:
2. (1) The purpose of this Act is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government.
4. (1) Subject to this Act, but notwithstanding any other Act of Parliament, every person who is
(a) a Canadian citizen, or
(b) a permanent resident within the meaning of the Immigration Act,
has a right to and shall, on request, be given access to any record under the control of a government institution.
(3) For the purposes of this Act, any record requested under this Act that does not exist but can, subject to such limitations as may be prescribed by regulation, be produced from a machine readable record under the control of a government institution using computer hardware and software and technical expertise normally used by the government institution shall be deemed to be a record under the control of the government institution. R.S., 1985, c. A-1, s. 4; 1992, c. 1, s. 144(F).
2. (1) La présente loi a pour objet d'élargir l'accès aux documents de l'administration fédérale en consacrant le principe du droit du public à leur communication, les exceptions indispensables à ce droit étant précises et limitées et les décisions quant à la communication étant susceptibles de recours indépendants du pouvoir exécutif.
4. (1) Sous réserve des autres dispositions de la présente loi mais nonobstant toute autre loi fédérale, ont droit à l'accès aux documents relevant d'une institution fédérale et peuvent se les faire communiquer sur demande:
a) les citoyens canadiens;
b) les résidents permanents au sens de la Loi sur l'immigration.
(3) Pour l'application de la présente loi, les documents qu'il est possible de préparer à partir d'un document informatisé relevant d'une institution fédérale sont eux-mêmes considérés comme relevant de celle-ci, même s'ils n'existent pas en tant que tels au moment où ils font l'objet d'une demande de communication. La présente disposition ne vaut que sous réserve des restrictions réglementaires éventuellement applicables à la possibilité de préparer les documents et que si l'institution a normalement à sa disposition le matériel, le logiciel et les compétences techniques nécessaires à la préparation. L.R. (1985), ch. A-1, art. 4; 1992, ch. 1, art. 144(F).
[c'est moi qui souligne]
 Further to section 4(3), limits were prescribed by regulation. In that regard section 3 of the Access to Information Regulations, SOR/83-507 (the ARegulations@) provides that:
3. For the purpose of subsection 4(3) of the Act, a record that does not exist but can be produced from a machine readable record under the control of a government institution need not be produced where the production thereof would unreasonably interfere with the operations of the institution.
3. Aux fins du paragraphe 4(3) de la Loi, la préparation d'un document qui n'existe pas comme tel mais qui peut être produit à partir d'un document informatisé relevant d'une institution fédérale n'est pas obligatoire lorsque cette préparation entraverait de façon sérieuse le fonctionnement de l'institution concernée.
 Laurence Motiuk of CSC swore an affidavit for this proceeding dated June 9, 1998 (the AAffidavit@) in which he deposed that he was the Director General Research for CSC.
 At paragraphs 3 and 7 of his Affidavit he described the work of CSC's Research Branch in the following terms:
The Research Branch of the CSC (the AResearch Branch@) provides statistical research and analysis in a variety of fields pertaining to issues in the correctional profession. As such, the Research Branch has been provided access to several classified data bases of other agencies such [as] the Royal Canadian Mounted Police (RCMP), who also control the Canadian Police Information Centre (CPIC) and the National Parole Board (NPB). The Research Branch draws on these databases, as well as that of the CSC in its continuing statistical and research initiatives. Each of these databases contains confidential and sensitive information relating to such items as the dates of crimes, convictions and types of charges laid, as they relate to specific crimes and the particular characteristics of the offender involved. The databases also include personal information such as an offender[']s name, age, address, fingerprint profile, criminal record and information relating to possible parole applications. These databases are not available to the general public. The Research Branch, and CSC in general, has been provided access to the databases of the agencies noted above on the basis that all information taken from those agencies will be treated in a confidential manner. The release of information gathered from these external databases without the consent of the agency affected will seriously affect future access by the CSC to that database, and consequently affect future research by the Research Branch. To gain access to these databases, the personnel in the Research Branch must have an enhanced security clearance.
In conducting research at the CSC, the standard process is to obtain information Aon line@, that is through electronic links to computer networks from agencies such as the Royal Canadian Mounted Police, the National Parole Board and the Correctional Service of Canada. For simplicity these may be described as databases AA@, AB@ and AC@. This information in these databases is gathered electronically by computer in a central location by the CSC Research Branch. Through that gathering process, a new database, which for simplicity may be called AD@, is created. Database AD@is an amalgamation of the information drawn from databases A, B, and C. For each research project a new and unique database ‘D' is created. Database AD@is then used as the basis for various statistical and other research projects. As the information in points A, B, and C is on line from the various sources noted above, any database AD@is created on an as needed basis and are destroyed or erased after their usefulness in the final research project has been exhausted. Some projects, however, rely on live date, (i.e. active files) and thus do not require the creation of a AD@database.
 In cross-examination on his Affidavit in answer to question 231 Mr. Motiuk said that:
Live data is data that is resident on the RCMP's databases, the CSC's information bases and the National Parole Board's decision base.
 At paragraph 23 of his Affidavit, Mr. Motiuk indicated that the Requested Data was Alive@ on the classified computer network systems of the RCMP, the National Parole Board and CSC. He noted that the Requested Data has never existed in a AD@ file. He observed that in order to create a AD@ database for release to the Applicant, the data would have to be purged to remove all personal identifiers including names, birth dates, finger print profiles and particulars of sentences.
 In Mr. Motiuk's opinion, once the personal identifiers were removed only the offence dates would remain. It appears that the Applicant and Mr. Motiuk disagree about whether dates of birth should be deleted. In any event, in Mr. Motiuk's opinion, the required work would:
... draw significant human and computer resources from current and ongoing research projects.
In his view, the creation, purging and packaging of the Requested Data for external use would take approximately two weeks of work with dedicated computers.
 CSC conceded that section 4(3) of the Act applies because the Requested Data can be created. Accordingly, the only issue is whether section 3 of the Regulations limits CSC's obligation to comply with the Request. In short, the question is whether the creation of the Requested Data would unreasonably interfere with the operations of CSC.
 No evidence was put forward about the operations of CSC or its Research Branch. I therefore have no idea whether it has a large staff and a complex computer system with many links to the systems operated by the RCMP and the National Parole Board or whether Mr. Motiuk works with a small staff and limited computer capacity. Further, there was no evidence about how many staff members and how much time would be required to do the two weeks' work he thinks will be needed. As well, no information was provided about the extent to which CSC's computers would be occupied creating the Requested Data. I also was given no indication whether any important or urgent matters are presently being researched by the Research Branch and what impact, if any, the creation of the Requested Data would have on the workload of the Research Branch.
 In my view, the Respondents bear the onus of showing that Regulation 3 applies and they have failed to meet the onus of demonstrating that creating the Requested Data will unreasonably interfere with their operations. Accordingly, an order will be made directing the Respondents to create the Requested Data.
The Code Book
 The Code Book is discussed in paragraph 13 of the Affidavit and at question 288 and following in Mr. Motiuk's cross-examination. This material discloses that the Research Branch does not develop code books because they have the expertise to read the data without them and because the creation of a code book is a very labour intensive activity. However, Mr. Motiuk acknowledged that a code book would have to be created to allow an external person meaningful access to the Requested Data.
 The Respondents' position is that section 4(3) of the Act does not apply because code books are not normally produced by the Research Branch. In my view, CSC has misread section 4(3). It does not say that the record must normally be produced. Rather it says that the record must be capable of being produced using the computers, software and expertise normally used by CSC. In my view the evidence shows that the code book can be produced in this manner.
 Mr. Motiuk estimated at question 295 of his cross-examination that the work would take A ... a good week to two weeks@. However, as described above, I was given no evidence about the impact of this work on the Respondents' operations and therefore I am not satisfied that this work will unreasonably interfere with the operations of CSC.
 Accordingly, section 3 of the Regulations does not apply and an order will be made requiring the creation of a code book to define and identify/locate the variables in each case included in the 1992-93 CSC release cohort used in March of 1997.
 I was referred to no cases which directly address the issue of whether software is producible in response to a request under section 4 of the Act. However, it seems to me that two questions must be answered in order to decide the issue. The threshold question is whether the software exists and if not whether it must be created, given the parameters set out in section 4(3) of the Act and section 3 of the Regulations. If the Software exists or must be created, it must then be decided whether it is a record under the Act.
 As noted above, the Applicant in this case seeks a copy of the Offender Intake Assessment Software which was in operation in March of 1977. It is said to have included software related to:
- The Custody Rating Scale (CRS)
- The General Statistical Indicator of Recidivism (GSIR)
- The Community Risk/Needs Management Scale (the ACRNMS@)
 In paragraph 4 and following of his Affidavit, Mr. Motiuk states that the Applicant was given a copy of the CRNMS software in 1994 pursuant to an informal request he made by letter dated March 28, 1994. At that time, this software was a stand alone package for use on a personal computer. However, later in 1994, it was integrated into software designed for CSC's mainframe computer and since then has not been available as a separate stand alone software package.
 Mr. Motiuk was the principle architect of the Offender Intake Assessment Software but it later underwent revisions and further development by an outside consultant. It now forms part of CSC's Offender Management System (AOMS@) Software which is used on its mainframe computer. The Offender Intake Assessment Software does not exist in a format which can be used on a personal computer.
 The OMS software is a massive repository of text files. The development of the OMS Software was a multi-million dollar project which involved a number of different outside software firms. It includes many different integrated software components or modules.
 At paragraph 9 of his Affidavit, Mr. Motiuk stated:
... The OMS software program is copyrighted by a private commercial software firm and licensed to CSC. Further, the OMS is not composed of internally separable modules that run on their own, but rather is an integrated whole.
As well, in answer to question 223 during his cross-examination, Mr. Motiuk indicated that none of the software components of the OMS exist in a stand alone form.
 Based on Mr. Motiuk's evidence, I am persuaded that the Software does not exist in a format which he could use on his personal computer. As well, the evidence is clear that Mr. Motiuk is not normally engaged writing software. This work is normally done by outside consultants. Further, there is no suggestion in the material that the work needed to break up the OMS software into distinct modules suitable for use on a personal computer as requested by the Applicant, is within the normal expertise of the CSC. Accordingly, it is my view that, even if the Software was a record, it would not be producible under section 4(3) of the Act.
 I have also concluded that software is not a record. Record is defined in section 3 of the Act as follows:
"record" includes any correspondence, memorandum, book, plan, map, drawing, diagram, pictorial or graphic work, photograph, film, microform, sound recording, videotape, machine readable record, and any other documentary material, regardless of physical form or characteristics, and any copy thereof;
« document » Tous éléments d'information, quels que soient leur forme et leur support, notamment correspondance, note, livre, plan, carte, dessin, diagramme, illustration ou graphique, photographie, film, microformule, enregistrement sonore, magnétoscopique ou informatisé, ou toute reproduction de ces éléments d'information.
 The question, based on this definition, is whether software should be included in the catch-all phrase Aany other documentary material@. The items listed in the definition seem to me to have two components which are: a) the information and b) the container for the information. For example, a videotape is a record. It is composed of the information (the pictures and sound track) and the container (the videotape and cassette case). Similarly, a machine readable record could be said to consist of the data and the disk which contains the data.
 On the other hand, none of the items listed in the definition of a record are those used to generate or view or edit the information. Items of this kind are not records and it seems to me that software falls into this category. It is used to create a disk and it is used to read the disk and manipulate the information on the disk just as a camera is used to create a film and a projector and editing machine are used to view and edit the information on the film.
 In my view, software is not analogous to any of the items in the definition and therefore falls outside the definition. The definition of record in the Act in the computer context is limited to the data and the disk. Thus, in proper cases, data on a disk must be supplied under the Act. However, Parliament has not, in my view, said that software must be supplied and, given the complex copyright issues which would arise if the Act covered software, I would expect software expressly to be listed if it had been Parliament's intention to have it accessible under the Act. I have concluded that it is the party who requests access to data in machine readable form who must secure the software and hardware needed to view and analyse the data. Accordingly, no order will be made with respect to the Software.
 The Applicant seeks a declaration that he is entitled to access to all the material he seeks based on section 2(b) of the Charter. I agree with counsel for the Respondents that, if granted, such a declaration would effectively mean that access to information is a constitutionally protected right.
 Section 2(b) of the Charter says that:
2. Everyone has the following fundamental freedoms:
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
2. Chacun a les libertés fondamentales suivantes :
b) liberté de pensée, de croyance, d'opinion et d'expression, y compris la liberté de la presse et des autres moyens de communication;
 The question of whether section 2(b) guarantees a constitutional Aright to know@ with respect to all information in the possession of government was considered by the Ontario Divisional Court in Ontario (Attorney General) v. Fineberg (1994), 19 O.R. (3d) 197 at 230-204. The case concerned Ontario's Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c.F-31 and involved, in part, a cross-application by a Toronto Star newspaper reporter in which he argued that certain sections of the Ontario legislation violated section 2(b) of the Charter.
 On this issue the Divisional Court concluded as follows:
The Canadian legal authority to which we were referred essentially centres on freedom of the press in the context of our courts. Thus, cases, such as Edmonton Journal v. Alberta (Attorney General)  2 S.C.R., 1326, 45 C.R.R. 1 are distinguishable. They deal with the traditional emphasis which has been placed, in our justice system, upon an open court system. The tradition of open court runs deep in Canadian society, as does the notion that the media are surrogates for the public. It is against this history that the Supreme Court has concluded that arguments in favour of the right of the press to report on the details of judicial proceedings are strong and that restrictions on that right clearly infringe s. 2(b). However, even this right has been confined to access to the court in contrast to information not revealed and tested in open court proceedings.
When it comes to government itself, other considerations may pertain. The information government has at its disposal, if looked at generally, potentially affects many interests, including privacy concerns of a constitutional dimension. The issue before us, therefore, is not just one of ensuring that government does its job effectively. Thus, the profound difficulty, represented by the statutory title AFreedom of Information and Protection of Privacy Act@ is equating responsible or accountable government with transparence governance. Indeed, this may explain why there is no unfettered public access to all information controlled by government akin to our almost unqualified tradition of open courts.
By contrast, our political access makes government bureaucracy accountable to elected officials, who in turn, conduct their business in the context of public elections and legislatures and where the media, again, play a fundamental reporting role. Opposition parties ask questions of the government in the legislature and in committees. Opposition parties are also dedicated to causing a critical public evaluation of the government's performance. Against this tradition, it is not possible to proclaim that s. 2(b) entails a general constitutional right of access to all information under the control of government and this is particularly so in the context of an application relating to an active criminal investigation.
 In view of this decision, I do not propose to grant the declaratory relief sought by the Applicant.
 As success was evenly divided, there will be no order as to costs.
Sandra J. Simpson JUDGE
May 3, 2001