Access to Information: Making it Work for Canadians

Report of the Access to Information Review Task Force

Public Servants’ Notes

Another issue brought to our attention is the need to clarify to what extent notes created by public servants for their exclusive use should be considered to be under the control of a government institution, and therefore subject to the Act. These are notes, for example, used by public servants to record their thoughts, or as “memory joggers.”

The underlying principle must certainly be that records created by public servants in the course of, and for the purposes of their work, are subject to the Act, and therefore accessible unless subject to an exemption or an exclusion. In short, public servants create government records and in Chapter 9 we discuss the need to heighten their awareness of this fact. The question is how best to make the distinction between government records - and notes for a person’s own use - clear and helpful.

Other jurisdictions have wrestled with this issue. To our knowledge, Quebec is the only jurisdiction that has addressed it in its legislation: Section 9 of An Act Respecting Access to Documents Held by Public Bodies and the Protection of Personal Information provides that the right of access to the documents held by a public body “does not extend to personal notes written on a document or to sketches, outlines, drafts, preliminary notes or other documents of the same nature.”

The United States Freedom of Information Act applies to “agency records,” a term which is not defined in the Act. However, the courts have held that the personal records of an individual agency employee are not “agency records.” The U.S. courts have identified several questions relevant to distinguishing between agency and personal records. These questions include, for example, whether the author created the document solely for their personal convenience, rather than to facilitate agency business; whether they distributed the document to anyone else; and whether they kept possession of the document or placed it on an official agency file.

The Task Force is of the view that the Act should not apply to notes made by public servants for their own use as “memory joggers.” On the other hand, we believe that the Act should apply to notes shared with others, or that are placed on office files. In our view, the Act should also apply to notes used in an administrative decision-making process that affects the rights of individuals, or in a government decision-making process reflected directly in policy, advice or program decisions.

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Deliberations of Administrative Tribunals

Tribunals such as the Canadian Human Rights Tribunal, like the courts, make decisions touching on a broad range of citizens’ rights. The deliberative process of these bodies is also similar to that of courts. There is therefore the same need to prepare hearing notes, and analyses of the issues, and to draft decisions independently and in confidence.

The lack of protection for the deliberations of administrative boards and tribunals covered by the Act is a source of concern. This concern persists despite a Federal Court of Appeal decision⁴ that notes taken by members of the Canada Labour Relations Board in the course of quasi-judicial proceedings are not under the control of the Board itself. We believe the need to protect these notes is self-evident, and the silence of the Act on this point was probably an oversight that should be remedied.

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Records Within the Military Justice System

The Act applies to the Canadian Forces and the Department of National Defence in their entirety, despite the fact the Canadian Forces have a military justice system which is separate from, but parallel to, the broader criminal justice system. This military justice system includes criminal investigators, an independent prosecution service, an independent defence bar, a military judiciary and service tribunals that judge both specific military offences and criminal matters.

The Task Force is of the view that the judicial and quasi-judicial functions within the military justice system should have the same protection as that proposed for administrative tribunals.

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Seized Records and Records Obtained in the Context of Litigation

There is also a need to clarify that the Act does not apply to records obtained by the government in the context of criminal investigations or litigation involving the Crown. This would include records seized by a government institution under the Criminal Code or other federal statute. Those laws already set out rules governing detention and ultimate return of the records.

This clarification should also include records obtained by a government institution from a third party as part of the discovery process in the context of civil litigation. The law provides that such documents are produced in accordance with the understanding that they are confidential. The information is not to be used for purposes other than the litigation and any failure to comply is a contempt of court. Such records are usually required to be returned once the litigation is completed.

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Conclusion

The need for greater clarity about the Act, and its application, is a recurring theme in this report. This clarity can be achieved through amendments to the Act itself (e.g. to state expressly that it does not apply to quasi-judicial notes) or by developing more detailed policy and guidelines (e.g. as to the meaning of “under the control of a government institution”). The Task Force believes that such clarity will help public servants and requesters better understand the Act’s scope, resulting in fewer disputes.

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⁴Canada (Privacy Commissioner) v. Canada (Labour Relations Board) (2000) E.C.R. (C.A.).