The public does not have a right to access all documents in the offices of cabinet ministers or the prime minister, the Supreme Court of Canada ruled Friday in a unanimous decision.
The top court upheld a Federal Court of Appeal decision, and sided with the federal government in a decade-old legal battle with the information commissioner.
Had the federal government lost its case Friday, it could have vastly expanded the scope of Canada's access-to-information law and potentially have allowed Canadians to get a closer look at the inner workings of the Prime Minister's Office and ministers' offices, including who they meet with on a daily basis.
The case involved a number of legal issues related to the access-to-information law that stipulates what government documents can and cannot be made public. The law says that a requester of information can be given access to records under the control of a government institution. The law outlines what government institutions are — they include government departments and the RCMP — and the list does not specify that the Prime Minister's Office and ministers' offices are among them.
The court had to decide whether the PMO is part of the Privy Council Office, the bureaucratic department that falls under the PMO, and if a minister's office is part of the department that he or she runs.
The court ruled that the prime minister and ministers are essentially separate from the departments they head and can therefore protect some documents from being released because they fall beyond the reach of the law.
But the decision does not mean that all records within the Prime Minister's Office and the offices of ministers are off-limits to the public. Some records can be accessed if they are determined to be under the control of the government institutions that are led by the prime minister or a minister.
'There is no presumption of inaccessibility for records in a minister's office.' —Justice Louise Charron, Supreme Court
What "control" means, however, is not defined in the access-to-information legislation. A lower court judge in this case developed a test to use when interpreting the meaning of the word and whether the access-to-information law would therefore apply. The Supreme Court, in its decision Friday, accepted that test and slightly modified it.
Physically locating a document in a minister's office or the PMO does not provide protection for it, according to the courts.
The first step in the test is to determine whether the record relates to a departmental matter. If it does, Step 2 then asks whether a senior staff member in the department, such as a deputy minister, should reasonably be able obtain a copy of the record. If the answer is yes, the record should be disclosed to anyone who requests it. In applying the test, other factors must be taken into consideration including the content of the record and the circumstances in which it was created.
"There is no presumption of inaccessibility for records in a minister's office. Further, this test does not lead to the wholesale hiding of records in ministerial offices," Justice Louise Charron wrote in the decision. "In addition, Parliament has included strong investigatory provisions that guard against intentional acts to hinder or obstruct individual's right to access."
The test advocated by the court, however, is an objective one, Charron acknowledges.
Agenda books to remain shielded
Friday's ruling means the daily agenda books of the prime minister and other documents that were requested more than a decade ago will remain shielded from the public.
Power & Politics: The War Room
In Friday's podcast, strategists Janet Ecker, Katie Telford and Robin Sears discuss the potential impact of the Supreme Court's ruling on ministerial offices.
Charron wrote in the decision that the top court was not considering whether the documents in question should be accessible, but rather, whether the existing legislation allows for them to be made public. The court concludes that it does not, and that it is up to Parliament to change the law.
The legal battle began in 1999 with a campaign to view former prime minister Jean Chrétien's schedules, and those of the transport and defence ministers. A member of the Reform Party used the access-to-information law to try to get the Chrétien records dating back to 1994.
During that time, Chrétien was leading a majority Liberal government and had to fend off a number of controversies. The APEC summmit, held in Vancouver in 1997, was one source of controversy because of the RCMP actions taken against protesters, including the use of pepper spray. Chrétien was criticized for shrugging off accusations that the police were heavy-handed and questions arose about what involvement his office had, if any, in the RCMP's security plans.
Requests for the records were made to the PMO, the Privy Council Office (the bureaucratic arm of the PMO) and the RCMP, which provides the prime minister's security detail.
Requests also went to the Department of Transport and the Department of National Defence for the agendas of the ministers at the time, David Collenette and Art Eggleton, respectively.
All the requests were rejected by the government on the grounds that the offices were protected by exemptions in the legislation and the Privacy Act because they could contain personal information.
When the government denies an access-to-information request, the person who made it can complain to the information commissioner, who will determine whether the complaint is legitimate. If it is, the information commissioner can recommend the records be released, and if the government still refuses to comply, the matter is passed on to the Federal Court.
When the case landed before the Federal Court in 2008, the judge ruled that some of the records, the ones held by the RCMP and Privy Council Office, should be released. The question with those records was whether the prime minister is considered an "officer" of the government institution that he or she heads because if so, there is an exemption in the Privacy Act that allows for personal information about an officer to be released. The Federal Court judge said the prime minister is an officer of the PCO, but that was overturned at the Federal Court of Appeal.
The Supreme Court upheld Friday the finding that the prime minister is not an officer of the PCO, which allows for the agenda books to be kept private.
Information commissioner worries about "black hole"
The information commissioner, a position currently held by Suzanne Legault, argued that the test adopted by the courts effectively allows for a minister's office to become "a black hole" that could be used to keep sensitive documents out of the public eye.
The Supreme Court ruled that what the information commissioner was asking for would have had the effect of extending the reach of the law into a minister's office, which Parliament clearly doesn't want to do otherwise it would have changed the legislation.
The top court says if its test is properly applied then documents won't fall into the black hole referred to by the information commissioner.
With regard to the documents requested in this case, the Supreme Court said Chrétien's agendas were not under the control of his related government institution, the Privy Council Office, because they were always in his possession or his exempt staff's possession and the PCO did not have a right to obtain them. The court ruled similarly on the documents held by the ministers of transport and national defence.
"I think it obviously constrains the ability to knock on the door of the minister's office or the prime minister's office," Marlys Edwardh, legal counsel to the information commissioner, said following the ruling.