Date: 20010607
Docket: T-656-01
Neutral Citation: 2001 FCT 599
BETWEEN:
THE INFORMATION COMMISSIONER OF CANADA
Applicant
-_and -
THE ATTORNEY GENERAL OF CANADA and
BRIGADIER GENERAL DANIEL LINDSEY ROSS
Respondents
[1] This twofold motion by the applicant ("the Commissioner") is, firstly, for the consolidation of two files, namely T-656-01 and T-814-01 and, secondly, for an order to file the confidential affidavit of Roy Hillier.
1. The Motion for Consolidation
[2] Both applications relate to the same investigation and raise identical issues of fact and law. The same parties are named in both applications and the consolidation of the two applications will prevent needless duplication of proceedings. Consequently, it is in the best interest of justice that the Commissioner be granted leave to consolidate those two applications.
2. The Motion for Directions with Respect to Confidentiality
[3] The Commissioner is conducting an investigation into a complaint with respect to the refusal of the head of the Department of National Defence to disclose records which are "the minutes or documents produced from the M5 Management Meeting for 1999". These are meetings between the Minister and the Deputy Minister of National Defence, the Chief of Defence Staff and the Minister's senior staff.
[4] The Commissioner intends to introduce evidence by way of the confidential affidavit of Roy Hillier regarding the security arrangements at his office. He alleges that this information is highly sensitive and should not become publicly available: given the inherently confidential nature of the evidence which would be provided to this Court, the Commissioner submits that an order preserving the confidentiality of this material should be issued.
[5] Roy Hillier is an investigator of the Office of the Commissioner. As a specifically designated investigator, pursuant to subsection 59(2) of the Access to Information Act[1] ("the Act"), he examines on a regular basis confidential records and the Act mandates extensive precautions to ensure that the records provided to the Commissioner are kept confidential. According to Roy Hillier's affidavit, no breach of security resulting in the disclosure of requested records has ever occurred.
3. Is the Motion Premature?
[6] The respondents argue that the motion is premature as it ought to be dealt with by case management under the governance of one single judge. By letter dated May 28, 2001, the Commissioner has already asked the Associate Chief Justice to appoint a single case management judge to deal with 15 applications for judicial review arising out of three investigations launched by the Commissioner. One of those investigations resulted in the instant applications for judicial review.
[7] The respondents agree that a single case management judge should be appointed and have asked the Associate Chief Justice by letter dated June 1, 2001, to include in the proposed case management five other applications for judicial review including these two applications. The Associate Chief Justice has not yet ruled on those two requests, presumably waiting for the reaction of the Commissioner to the respondents' request.
[8] However, at the hearing, counsel for the Commissioner did not agree that these two files should be on the management list. He insisted that they be dealt with presently and separately.
4. Does the Evidence Presented by the Commissioner Justify a Confidentiality Order?
[9] In determining whether to issue a confidentiality order pursuant to the provisions of Federal Court Rule 151, the Court will balance the possible harm from disclosing confidential documents with the public interest in an open judicial process. The Attorney General of Canada submits that confidentiality orders ought only issue where there are compelling, justifiable reasons so to do based upon the evidence before the Court[2] .
[10] The written representations of the Commissioner on the need for confidentiality are very scanty. They are limited to the following two paragraphs:
14. The Commissioner intends to introduce evidence by way of a confidential affidavit of Roy Hillier regarding the security arrangements at his office. This information is highly sensitive and should not become publicly available. The Certificates signed by Brigadier General Ross were provided to the Commissioner during his private investigations. Section 35 of the Act requires the Commissioner to keep his investigations private.
15. Given the inherently confidential nature of the evidence which will be provided to this Court the Commissioner submits that an Order preserving the confidentiality of this material should be issued.
[11] And, as referred to earlier, the affidavit of Roy Hillier in support of this motion (which is not, of course, the main affidavit sought to be filed in confidentiality) justifies the need for confidentiality of his affidavit as follows:
21. The Act mandates, and the Office of the Information Commissioner has taken, extensive precautions to ensure that the records provided to the Office are kept confidential. A more detailed explanation of these measures is set out in my Confidential Affidavit.
[12] Without further particulars in this motion's affidavit as to the nature of the security arrangements, whether administrative or physical, the Commissioner has not established that public interest in confidentiality outweighs the public interest in an open judicial process.
[13] The Commissioner wants to keep confidential the Certificates signed by Brigadier General Ross in which the latter objects to the disclosure of information pursuant to sections 37 and 38 of the Canada Evidence Act[3]. Such Certificates are usually filed on the public record in the proceedings before which the objection is made. There are no reasons why they should be kept confidential when annexed to Roy Hillier's affidavit.
[14] The principle of open public access to the courts is of sufficient importance to limit confidential orders to the information that must be kept confidential. Again, if the Commissioner wishes to keep confidential the physical, administrative, or other security arrangements in his office, relied upon for the protection of information, the request should be tailored to the precise objective.
6. Disposition
[15] Consequently, I am not prepared at this time to issue a broad confidentiality order on such minimal information. Moreover, if the Associate Chief Justice does decide to include those two files along with the others in the same grouping, the confidentiality of information relating to the security at the office of the Commissioner may be raised again
on the basis of more substantial information and an order could then apply mutatis mutandis to all judicial reviews in the same group.
[16] As mentioned earlier, the order for consolidation is granted as requested and the confidentiality application is denied.
OTTAWA, Ontario
June 7, 2001
Judge
[1] R.S.C. 1985, c. A-1.
[2] Sierra Club of Canada v. Canada (Minister of Finance), [2000] 4 F.C. 426 (C.A.) and AB Hassle v. Canada (Minister of National Health and Welfare), [2000] 3 F.C. 360.
[3] R.S.C. 1985, c. C-5.