Date: 20050223
Docket: T-1013-04
T-1014-04
T-1015-04
T-1016-04
BETWEEN:
SHELDON BLANK
Applicant
and
THE MINISTER OF JUSTICE
Respondent
REASONS FOR ORDER
KELEN J.
[1] This decision concerns a motion made by the respondent to file confidential affidavits with the Court in respect of four applications for judicial review (T-1013-04, T-1014-04, T-1015-04 and T-1016-04).
BACKGROUND
[2] In February and May 2000, the applicant, Sheldon Blank, made requests to the Access to Information and Privacy Office of the Department of Justice for communications and records pertaining to him and his company, Gateway Industries. The respondent refused to release some of the documentation requested by the applicant on the basis that it was protected by solicitor-client privilege and thus exempt from disclosure by virtue of section 23 of the Access to Information Act, R.S.C. 1985, c. A-1 (Access Act).
[3] In July 2000, the applicant filed a complaint with the Office of the Information Commissioner regarding the exemptions invoked by the respondent. Pursuant to sections 30 and 37 of the Access Act, the Information Commissioner commenced an investigation into the propriety of exempting the documentation from disclosure and provided the respondent with its non-binding recommendation on the matter. In the course of this investigation, a number of communications passed between the Information Commissioner and officials from the Department of Justice.
[4] The applicant then brought four applications pursuant to section 41 of the Access Act for judicial review of the respondent's decision to exempt certain records, or portions of the records, from disclosure.
[5] In July 2004, the respondent brought a motion requesting that it be allowed pursuant to rules 151 and 152 of the Federal Court Rules, 1998 to file the confidential affidavits of Kerri Clark and Helen Ryan in the applications for judicial review. The proposed confidential affidavits contained the documents over which the respondent claimed privilege as well as communications made with the Information Commissioner in the course of his investigation. The motion was heard before me on September 13, 2004 in Winnipeg. At that time I adjourned the motion to allow the respondent time to file a revised affidavit that reflected the decision of the Court of Appeal in Blank v. Canada (2004), 244 D.L.R. (4th) 80. In paragraph 66 of that decision, the Court of Appeal held that when a request is made under the Access Act for access to a privileged document, the government must sever and disclose the general identifying information from that document. Such information includes the description of the document, the name, title and address of the person to whom the communication was addressed, the closing words of the communication and the signature block.
[6] The respondent subsequently filed the affidavits of Amanda Cloutier and Shelley Emmerson which purport to contain descriptive lists of documents being withheld by the respondent in accordance with the decision of the Court of Appeal in Blank, supra. The two further affidavits also include documents over which the respondent no longer claims privilege.
[7] The applicant then brought a motion requesting clarification of my Order from September 13, 2004. The motion was heard by teleconference on November 25, 2004. At that time it was agreed that two issues needed to be resolved with respect to the revised affidavits:
1. Whether documents pertaining to the communications made with the Information Commissioner in the course of his investigation can be filed confidentially or whether they must be made public; and
2. Have the privileged documents in the revised affidavits been severed and identified in accordance with paragraph 66 of the Court of Appeal's decision in Blank, supra.
[8] It was further agreed that these issues and the underlying motion to file confidential affidavits could be disposed of in writing. I have now had the opportunity to review the written submissions of the parties and the following are my conclusions with respect to the outstanding issues.
Issue No. 1
Whether documents pertaining to the communications made with the Information Commissioner in the course of his investigation can be filed confidentially or whether they must be made public
[9] The respondent seeks to file in its confidential affidavit material relating to communications made between the Department of Justice and the Information Commissioner in the course of his investigation. The respondent submits that this material is relevant because one of the issues raised by the applicant is the degree to which the recommendations of the Information Commissioner were followed by the respondent.
[10] The respondent states that the documentation should be filed in confidence with the Court because section 35 of the Access Act prescribes that the investigation of the Information Commissioner be conducted in private. The section in its entirety reads as follows:
| 35. (1) Every investigation of a complaint under this Act by the Information Commissioner shall be conducted in private. (2) In the course of an investigation of a complaint under this Act by the Information Commissioner, a reasonable opportunity to make representations shall be given to (a) the person who made the complaint, (b) the head of the government institution concerned, and (c) where the Information Commissioner intends to recommend under subsection 37(1) that a record or a part thereof be disclosed that contains or that the Information Commissioner has reason to believe might contain (i) trade secrets of a third party, (ii) information described in paragraph 20(1)(b) that was supplied by a third party, or (iii) information the disclosure of which the Information Commissioner could reasonably foresee might effect a result described in paragraph 20(1)(c) or (d) in respect of a third party, the third party, if the third party can reasonably be located, but no one is entitled as of right to be present during, to have access to or to comment on representations made to the Commissioner by any other person. (emphasis added).
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35. (1) Les enquêtes menées sur les plaintes par le Commissaire à l'information sont secrètes.
(2) Au cours de l'enquête, les personnes suivantes doivent avoir la possibilité de présenter leurs observations au Commissaire à l'information, nul n'ayant toutefois le droit absolu d'être présent lorsqu'une autre personne présente des observations au Commissaire à l'information, ni d'en recevoir communication ou de faire des commentaires à leur sujet_: a) la personne qui a déposé la plainte; b) le responsable de l'institution fédérale concernée; c) le tiers visé au paragraphe 27(1), si le Commissaire à l'information a l'intention de recommander, en vertu du paragraphe 37(1), la communication d'un document visé au paragraphe 27(1).
a) soit des secrets industriels d'un tiers;
b) soit des renseignements visés à l'alinéa 20(1)b) qui ont été fournis par le tiers;
c) soit des renseignements dont la communication risquerait, selon lui, d'entraîner pour le tiers les conséquences visées aux alinéas 20(1)c) ou d).
La présente disposition ne vaut que s'il est possible de rejoindre le tiers sans problèmes sérieux. |
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[11] In Rubin v. Canada, [1994] 2 F.C. 707, aff'd, [1996]1 S.C.R. 6, the Court of Appeal confirmed that representations made to the Information Commissioner in the course of his investigation remain confidential both during the investigation and after it has been completed. Therefore, in that case, the representations made to the Commissioner did not have to be disclosed to the complainant.
[12] The applicant does not take issue with the decision in Rubin, supra, rather he submits that it has no application to the present case. He argues that while the Commissioner is prevented
from disclosing representations made to him during the course of his investigation, there is nothing preventing the respondent, as author of the representations, from waiving confidentiality and releasing the materials publically. Although the respondent cannot be forced to produce the documentation, once it chooses to rely on the documents in a court proceeding, it should be required to do so publically.
[13] In reply, the respondent submits that it is the applicant who has raised the issue of compliance with the recommendations of the Information Commissioner. Since the respondent is merely attempting to respond to those allegations and defend itself, it should not be required to waive confidentiality. Moreover, because Mr. Blank is self-represented and not bound by professional obligations, it would not be appropriate to disclose the documents to him with an undertaking of confidentiality.
[14] Given the circumstances of this case, I am of the view that the respondent should be permitted to file material relating to the investigation of the Information Commissioner in confidence. I have come to this conclusion for two reasons. First, because the Access Act creates a general presumption that representations made to the Information Commissioner are to be kept confidential. This encourages government departments being investigated by the Information Commissioner to provide complete and candid disclosure in the course of the investigation. Second, this is not a case where the respondent is attempting to file confidential information in furtherance of an allegation that it has raised or to obtain a remedy. Rather, it is merely defending itself against an allegation put forward by the applicant. The material is being used as a shield, not as a sword.
[15] The purpose of allowing the respondent's materials to be filed confidentiality at this point is to ensure that the documents are available to the judge hearing the application. The applications judge will be in the best position to determine if an exception should be granted to allow Mr. Blank access to all or some of this material. It may be that Mr. Blank will need to retain counsel who is authorized under the law to receive confidential information and to make the necessary undertakings. Legal counsel, should Mr. Blank chose to be represented, would have access to these confidential documents.
Issue No. 2
Have the privileged documents in the revised affidavits been severed and identified in accordance with paragraph 66 of the Court of Appeal's decision in Blank, supra.?
[16] The purpose of adjourning the motion on September 13, 2004 was to allow the respondent time to file affidavits that complied with the decision in Blank, supra. On October 25, 2004, Justice Décary suspended the effect of the judgment in Blank, supra, until the Supreme Court of Canada renders its decision on the application for leave to appeal. Although the decision has been suspended, I adopted paragraph 66 as the correct statement of the law during the teleconference held November 25, 2004. Therefore, the descriptive lists submitted by the respondent must still comply with the severance requirements set out in Blank, supra.
[17] In his memorandum, Mr. Blank highlighted the documents that he believed were not properly severed or sufficiently descriptive. His argument focuses in large part on the description of the subject lines. After a thorough review of the confidential affidavits and the descriptive lists contained in the public affidavits of Amanda Cloutier and Shelley Emmerson, I am satisfied that the privileged documents have been severed in accordance with paragraph 66 of Blank, supra. In some instances, the subject lines disclosed by the respondent in the descriptive lists are very general in nature, however, these are the subject lines used in the documents over which confidentiality is claimed. In other instances, the subject lines have been withheld because the respondent considers the information to be privileged. It is not the role of the Court at this stage to determine whether the subject lines or any other information withheld by the respondent should be disclosed. The applications judge will decide what information is privileged and properly withheld when he or she addresses the merits of the application.
[18] Mr. Blank also submits that the descriptive list contained in the affidavit of Shelley Emmerson (T-1014-04) does not differentiate between litigation and solicitor-client privilege as required by my order of September 13, 2004. The respondent has agreed to provide a breakdown of the types of privilege being claimed under section 23 of the Access Act as it did in the affidavits of Amanda Cloutier.
[19] Accordingly, the motion will be allowed permitting the respondent to file the confidential affidavits of Kerri Clark, Helen Ryan and Amanda Cloutier. The respondent must also provide a revised list for file T-1014-04 with a breakdown of the types of privilege being claimed under section 23 of the Access Act.
"Michael A. Kelen" _______________________________
JUDGE
OTTAWA, Ontario
February 23, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1013-04, T-1014-04, T-1015-04, T1016-04
STYLE OF CAUSE: SHELDON BLANK and THE MINISTER OF JUSTICE
PLACE OF HEARING: OTTAWA, ONTARIO (by teleconference)
DATE OF HEARING: NOVEMBER 25, 2004
REASONS FOR ORDER : THE HONOURABLE MR. JUSTICE KELEN
DATED: FEBRUARY 23, 2005
APPEARANCES:
Sheldon Blank APPLICANT SELF-REPRESENTED
Christopher Rupar
Jessica Cogan FOR RESPONDENT
SOLICITORS OF RECORD:
APPLICANT SELF-REPRESENTED
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR RESPONDENT
FEDERAL COURT
Date: 20050223
Docket: T-1013-04
T-1014-04
T-1015-04
T-1016-04
BETWEEN:
SHELDON BLANK
Applicant
and
THE MINISTER OF JUSTICE
Respondent
REASONS FOR ORDER