Date: 20010927
Docket: T-785-00
Neutral citation: 2001 FCT 1054
BETWEEN:
THE INFORMATION COMMISSIONER OF CANADA
Applicant
AND:
THE CHAIRMAN OF THE CANADIAN CULTURAL
PROPERTY EXPORT REVIEW BOARD
Respondent
[1] The applicants, pursuant to section 44 of the Access to Information Act R.S.C. 1985, c. A-1, are before the Court for a review of a decision rendered by the Respondent wherein it is refusing to disclose certain documents in answer to a request for access to information directed to the Chairman of the respondent Tribunal.
[2] The respondent, the Canadian Cultural Property Export Review Board, is created pursuant to the Cultural Property Export and Import Act, R.S.C. 1974-75-76, c. C-51. One of its functions is to control and, where necessary, to preserve the national heritage of Canada. Included in its list for preservation are documents and collections of documents which may be of historic and intrinsic value and should be preserved.
[3] Some time prior to April of 1998, Mr. Mel Lastman, the former Mayor of the City of North York, approached the municipal authorities of North York indicating that he would like to donate a series of documents, papers, speeches, photographs, minutes of meetings, etc. The municipal authorities then contacted the respondent Board who in turn convened a review board to determine if this collection of documents would be of archival value and meet the criteria under the Act and could be certified for the City of North York as a donation.
[4] Upon receiving a request and under the power and authority of the Deputy Minister of National Revenue, the respondent Chairman may designate a Review Board comprised of individuals who possess professional expertise.
[5] The function of the Review Board is to determine the fair market value of an object in respect of which a request is made under the Act. It determines if the object meets certain criteria and, once it has been irrevocably disposed of to a designated institution or public authority, the Board may issue to the person who made the disposition a certificate attesting to the fair market value in such form as the Minister of National Revenue specifies.
[6] Subsection 33(2) of the Cultural Property Export and Import Act provides that an official or member of the Review Board then communicates to an official of the Department of National Revenue the fair market value of the items in question and the issuance of the certificate.
[7] In the present case, this process was undertaken and successfully concluded and, in a letter dated April 1, 1998, the respondent Board after reviewing the opinion submitted by experts in the field, advised Mr. Lastman that the collection met the criteria of "outstanding significance and national importance". The Board confirmed a fair market value and forwarded a cultural property income tax certificate in the form required by the Minister of National Revenue.
[8] The amount of the tax credit was eventually made public by Mr. Lastman at a press conference held January 11, 1999 in which he revealed information regarding his donation to the former City of North York and disclosed that the Board accepted the donation which resulted in a tax credit in the amount of $55,000.00.
[9] In a request for access to information dated September 23, 1998, one Jonathan Gatehouse, a Canadian citizen and a reporter with a national newspaper, submitted a request for the following:
"all documents pertaining to the board's review and approval of a tax credit request by or for the former City of North York (now Toronto) in regards to the donation of the archives and memorabilia of Mayor Mel Lastman, and/or members of his immediate family, including his wife Marilyn. This request would include, but not be limited to: any appraisal report prepared by your department or outside experts regarding the collection, all correspondence between the parties involved, internal memorandums and communications (including e-mails) regarding the request, and minutes of all meetings where the request or collection were discussed"
[10] On December 2, 1998, the Secretary to the Board as well as the Access to Information Coordinator gave written notice to the requestor of the Department's decision to exempt from disclosure some of the requested documents and relied on sections 19 and 24 of the Access to Information Act for refusal to disclose. Initially the Board had raised section 20 of the Act but this was abandoned at the time this application was entertained.
[11] The information to which access has been denied is contained in the applicants' confidential record, Volume C-1, pages 16 to 28. Some documents have sentences and paragraphs which, though not obliterated, are outlined in boxes with diagonal strokes throughout; these boxes contain information that is not in dispute and may remain confidential as agreed between the parties.
[12] The respondent's position is that the records at issue constitute personal information as defined by section 3 of the Privacy Act, and therefore in accordance with subsection 19(1) of the Access to Information Act, the records must not be disclosed. In addition, the respondent relies on section 241 of the Income Tax Act, insofar as subsection (10) of that provision restricts the release of taxpayer information. Finally, the respondent argues that the Court should not interfere with the exercise of its discretion not to disclose.
[13] I am allowing the application for the following reasons.
[14] First, I have reviewed the documents and am not satisfied that they fall within the definition set out in paragraph 3(b) of the Privacy Act. Section 3 provides that for the purposes of section 19 of the Access to Information Act, certain information will not be considered "personal information". These exceptions to "personal information" are found in subsections 3(j) through (m) of the Privacy Act, subsection 3(l) being most relevant for the case at bar:
"But, for the purposes of sections 7, 8 and 26 and section 19 of the Access to Information Act, [personal information] does not include
(l) information relating to any discretionary benefit of a financial nature, including the granting of a license or permit, conferred on an individual, including the name of the individual and the exact nature of the benefit..."
[15] I am satisfied that the information which is sought here falls within the exemption contained in paragraph 3(l) of the Privacy Act. Once a discretionary decision has been made by the Review Board, the individual receives an income tax certificate based on the fair market value of the cultural property donated to a designated institution, as established by the CCPERB. The fair market value of the certified cultural property is converted into a tax credit pursuant to paragraph 118.1(3) of the Income Tax Act for the purposes of calculating income tax payable, and thus, can be seen as a tax advantage or benefit. Any capital gains realized on the dispositions of this property is also exempt from income tax. In the case at bar, the Lastmans received a tax certificate from the CCPERB in the amount of $55,000.00.
[16] In any event, it seems clear that the information in question must still be disclosed by virtue of it being publicly available within the meaning of paragraph 19(2)(b) of the Access to Information Act.
[17] References to the fact that the City of North York was granted a "designation" specifically for the purpose of acquiring the Lastman collection are in the public domain by virtue of statements in newspaper articles and the operation of section 32 of the Cultural Property Export and Import Act. The newspaper articles reveal that the City of North York was the public institution which sought to accept the Lastman collection. The Act requires that an institution that wishes to acquire a donation and submit an application for certification of cultural property for income tax purposes must be designated by the Minister of Canadian Heritage. Subsection 32(2) specifies that the Minister may designate any institution "generally or for a specified purpose". A "Category B" designation applies to donations made for a specific purpose. Further, the affiant acknowledged that the institutions designated in Category B and authorized to receive specific donations would be disclosed to the public on request.
[18] Mr. Lastman's career as a public official and businessman is in the public domain. It can be ascertained through observation that his "personal records and documents" which he has admitted received certification by the CCPERB as cultural property pertain to his public life. This is also evident by the fact that an application for certification is only granted if it meets the requirements under 11(1)(a) and (b) of "outstanding significance by reason of its close association with Canadian history or national life" and its national importance as determined by the Review Board.
[19] I am satisfied therefore that the information in question is available in the public domain. The respondent CCPERB has failed to properly apply subsection 19(2) of the Access to Information Act and has therefore failed to discharge its burden under section 48 to establish that it was authorized to refuse to disclose the requested records or portions thereof pursuant to subsection 19(1).
[20] Finally, I am not persuaded by the respondent's argument with respect to section 241 of the Income Tax Act; namely, that the information in question constitutes "taxpayer information". Subsection 241(10) of the Act defines taxpayer information as follows:
"Information of any kind and in any form relating to one or more taxpayers that is
(a) obtained by or on behalf of the Minister for the purposes of this Act, or
(b) prepared from information referred to in paragraph (a),
but does not include information that does not directly or indirectly reveal the identity of the taxpayer to whom it relates."
[21] In my view, taxpayer information refers to information about specific taxpayers obtained through tax returns or collected during tax investigations which would reveal the person's (individual or corporation) identity. Until the taxpayer submits the information to Revenue Canada or such information is obtained in the course of an investigation, the information in question cannot be said to have been "obtained" by or on behalf of Revenue Canada. The respondent has not provided any affidavit evidence by the Lastmans to demonstrate that they have submitted this information to Revenue Canada.
[22] Furthermore, the purpose of section 241 is the protection of the confidentiality of information given to the Minister for the purposes of the Income Tax Act. Where that information has been publicly disclosed by the taxpayer himself or is generally known to be in the public domain and can be compiled with some effort, that individual's privacy interests cannot be said to have been breached.
[23] Section 48 of the Access to Information Act provides that the respondent government institution bears the burden of establishing, on a balance of probabilities, that the disputed information falls within the exemption it is relying upon to refuse disclosure. The Federal Court has emphasized that the party seeking to withhold the requested information has a heavy onus to bear in that it must place "specific and detailed evidence" before the Trial Judge to demonstrate that the requested information comes within the terms of the exemption. I am not persuaded that onus has been met in the present case.
[24] For all of these reasons, the application is allowed.
JUDGE
OTTAWA, Ontario
September 27, 2001