Federal Court Decisions

     Date : 19971024

     Docket : T-754-96

IN THE MATTER OF an application pursuant to paragraph 41 of the Access to Information Act, S.C. 1980-81-82, c. 111, Schedule I

IN THE MATTER OF a Notice of Decision given to the Applicant dated January 25, 1995, pursuant to the said Act

AND IN THE MATTER OF a review of the above pursuant to s. 41 of the said Act dated February 16, 1995

BETWEEN:

     RONALD W. TOLMIE

     Applicant

     - and -

     THE ATTORNEY GENERAL OF CANADA

     Respondent

     REASONS FOR ORDER

McGILLIS, J.

FACTS

[1]      The applicant has applied under section 41 of the Access to Information Act, R.S.C. 1985, c. A-1, as amended, to review the decision of the respondent refusing to disclose certain records.

[2]      By letter dated January 6, 1995, the applicant made a request on behalf of IRAD Corporation under the Access to Information Act that the respondent provide him with a copy of the Revised Statutes of Canada in electronic form. In his request, he stated that "the preferred format is the existing WordPerfect 5.1 format that is presently used within Justice Canada for creating the Statutes. However, alternative formats such as the Folio format used on the CD-ROM produced for this purpose would be acceptable." In other words, the applicant requested access to a computer-readable version of the Revised Statutes of Canada.

[3]      By letter dated January 25, 1997, the respondent refused to release an electronic version of the Revised Statutes of Canada to the applicant. The respondent claimed that it was justified in refusing to provide the requested access on the basis of paragraph 18(b) of the Access to Information Act in order to protect the economic interests of the government.¹ In refusing the access request, the respondent stated as follows:

As you have pointed out in your letter the Department is planning to make the Revised Statutes of Canada available to members of the public. Negotiations are currently underway to provide this information in CD-ROM format sometime this year. The Department recognizes there are a number of businesses in Canada that specialize in providing access to databases of a legal nature. Providing your company now with a copy of the Revised Statutes would jeopardize departmental plans to sell the information. Thus, we have applied section 18(b) of the Act [economic interests of the government] to exempt the information from release.

[4]      On February 1, 1995, the applicant filed a complaint with the Information Commissioner.

[5]      During the course of the Information Commissioner's investigation, the respondent took the position that the records were excluded from access under paragraph 68(a) of the Access to Information Act on the basis that they were published material already publicly available in print.²

[6]      On August 20, 1995, the respondent established the Department of Justice Internet Web Site to provide the public with access to various types of information, including all federal laws. At the same time, the respondent announced that CD-ROMs containing the consolidated versions of the Revised Statutes of Canada and the Regulations would be released in the near future, and would be updated twice a year.

[7]      In October 1995, the CD-ROM version of the Revised Statutes of Canada was released publicly for sale at a cost of $225.00.

THE INFORMATION COMMISSIONER'S DECISION

[8]      By letter dated February 16, 1995, the Information Commissioner advised the applicant that his complaint against the respondent was not substantiated. In his report, the Information Commissioner concluded that, at the time of the applicant's request, the non-disclosure of the records was justified under paragraph 18(b) of the Access to Information Act on the basis of the economic interests of the government. He further concluded that, at present, paragraph 68(a) of the Access to Information Act would apply to exempt the records from disclosure given the availability of the electronic version of the statutes on CD-ROM and on the Internet. In his decision, the Information Commissioner stated, in part, as follows:

Based upon my investigation, I am satisfied that, at the time of your request, section 18 justified non-disclosure. It would appear that the project to market the Revised Statutes of Canada and Regulations was well on the way at the time of your request. It was also reasonable to believe that disclosure of this information at that time could have prejudiced the department's ability to market the information.

It is my view that the machine-readable version of the Revised Statutes and Regulations was properly exempted at the time of the request. This said, Justice has since made the Revised Statutes available on Internet. Since that has been done, I am of the view that paragraph 18(b) no longer justifies non-disclosure. I must, therefore, consider the matter of section 68.

     ...

Since the electronic form of the statutes was not available to the general public at the time of your request, it is my view that section 68 did not apply at that time. As I said previously, however, the electronic version of the statutes is now available, both on the Internet and in CD-ROM from CCG. Moreover, the price of $250 for the CD-ROM version is, in my view, reasonable. At this time, then, section 68 does apply and, for that reason, I do not intend to recommend to the department that a machine-readable version now be disclosed to you.

ISSUE

[9]      The question to be determined is whether the applicant is entitled to have access to a computer-readable version of the Revised Statutes of Canada.

ANALYSIS

[10]      Despite the able argument of the applicant, I have concluded that the requested records are presently exempt from disclosure under paragraph 68(a) of the Access to Information Act on the basis that an electronic version of the Revised Statutes of Canada is available to the public in a CD-ROM format or on the Internet. Since the information is publicly available in electronic format, the provisions of the Access to Information Act have no application in this matter. The applicant is therefore not entitled to have access to the requested records, even though he may wish to obtain them in the particular electronic format in which they are held by the respondent. Under the Access to Information Act, a person may seek access to information, but he has no right to dictate that the information be provided to him in a particular format.

[11]      Given my conclusion that the records are exempted from disclosure under paragraph 68(a) of the Access to Information Act, it is unnecessary for me to consider whether the respondent was justified in refusing disclosure on the basis of the economic interests of the government under paragraph 18(b).

[12]      In his oral and written submissions, the applicant stated that he had not been provided with an opportunity to make representations to the Information Commissioner on the question of whether the respondent could rely on paragraph 68(a) of the Access to Information Act in this matter. He adduced no evidence to indicate that the Information Commissioner had denied him the right to make submissions on that point. To the contrary, the Information Commissioner stated as follows in his letter dated February 16, 1995:

Throughout our investigation, we received many thoughtful representations from you on the various issues in your complaint. Let me assure you that in making my finding I have taken all of your representations into consideration. They have been helpful and I am grateful for your participation.

This said, I want to deal with your suggestion that it is improper for a department to add new exemptions after it has notified a requester of the basis of its decision to refuse disclosure. A similar problem was discussed recently by Mr. Justice Dubé during the course of section 41 application. In this case, the applicant (one of our previous complainants) raised the issue as to whether the head of an institution was bound by the grounds originally stated in its notice of refusal. This Court found that the applicant would not suffer any prejudice by the claim of the additional exemption as I had an opportunity to investigate the new grounds of exemption which were relied upon.

It is clear from the decision that only when grounds for exemption are claimed after the investigation by the Information Commissioner, would the Court not permit such exemptions. For your convenience, I am enclosing a copy of the Rubin decision and the Davidson case to which it refers. While I can well understand your frustration, I have no other choice than to permit departments to claim additional exemptions during the course of the investigation.

[13]      A review of the Information Commissioner's decision indicates that he expressly considered the question of whether the respondent could rely on an additional ground of exemption raised during the course of the investigation. Furthermore, he appears to have considered representations made by the applicant on that very point. In the circumstances, I have concluded that there is no merit to the applicant's argument that he was denied the right to make representations on the additional ground of exemption raised by the respondent. I have also concluded that the Information Commissioner properly determined, in the context of the facts of this case, that the respondent was entitled to raise, during the course of the Information Commissioner's investigation, an additional ground of exemption under the provisions of the Access to Information Act.

DECISION

[14]      The application for review is dismissed. There is no order as to costs.

Judge

OTTAWA, ONTARIO

October 24, 1997

__________________

¹      Paragraph 18(b) of the Access to Information Act provides as follows:
         The head of a government institution may refuse to disclose any record requested under this Act that contains
     ...
         b)      information the disclosure of which could reasonably be expected to prejudice the competitive position of a government institution;

²      Paragraph 68(a) of the Access to Information Act provides as follows:
     This Act does not apply to
         (a)      published material or material available for purchase by the public;