Judge or­ders re­lease of Se­nate files

Pages with­held im­prop­erly, court rules

Ottawa Citizen - - POLITICS -

A Fed­eral Court judge has or­dered the cen­tral bu­reau­cracy that serves the prime min­is­ter and cab­i­net to par­tially re­lease pages of in­for­ma­tion on four se­na­tors at the heart of the 2013 Se­nate spend­ing scan­dal, rul­ing they were im­prop­erly with­held.

Jus­tice James O’Reilly ruled parts of the doc­u­ments — in­clud­ing a memo Canada’s top bu­reau­crat wrote to then-prime min­is­ter Stephen Harper — were wrongly clas­si­fied as sen­si­tive le­gal or min­is­te­rial ad­vice, mak­ing them ex­empt from pub­lic re­lease un­der the fed­eral ac­cess to in­for­ma­tion law.

O’Reilly also agreed that por­tions of the doc­u­ments re­lated to se­na­tors Mike Duffy, Patrick Brazeau, Pamela Wallin and for­mer se­na­tor Mac Harb should re­main out of pub­lic view — al­though those de­tails of the writ­ten rul­ing were among large swaths that re­mained redacted in or­der to give the govern­ment a chance to ap­peal.

In­for­ma­tion com­mis­sioner Suzanne Le­gault said the of­fice is con­sid­er­ing whether to ap­peal any as­pects of the de­ci­sion. The Prime Min­is­ter’s Of­fice de­ferred com­ment to the Privy Coun­cil Of­fice.

“We are in re­ceipt of the court’s de­ci­sion and are re­view­ing it while con­sid­er­ing all op­tions,” said PCO spokesman Stephane Shank.

An ex­pert on the Ac­cess to In­for­ma­tion Act said the rul­ing ex­poses long-stand­ing is­sues with the decades­old trans­parency law that may not be fully ad­dressed in the Lib­eral govern­ment’s pro­posed changes to the act.

“It’s for the most part a good de­ci­sion within the con­straints of the act, but it is not as if the act is chang­ing and the se­crecy the act al­lows for hasn’t changed and doesn’t look like it’s go­ing to change un­der the fed­eral Lib­er­als,” said Sean Hol­man, an as­so­ciate pro­fes­sor of jour­nal­ism at Cal­gary’s Mount Royal Univer­sity.

The Lib­er­als have in­tro­duced changes to the decades-old trans­parency law that would let the in­for­ma­tion watch­dog or­der de­part­ments to re­lease doc­u­ments, but fell short of a lofty cam­paign prom­ise to make min­is­ters’ of­fices fully sub­ject to the free­dom of in­for­ma­tion regime. It would also al­low for de­part­ments to refuse re­quests that are con­sid­ered friv­o­lous or “vex­a­tious.”

The law al­lows peo­ple who pay $5 to ask for ev­ery­thing from in­ter­nal fed­eral au­dits and meet­ing min­utes to cor­re­spon­dence and stud­ies, but gives lee­way for of­fi­cials to with­hold in­for­ma­tion for a va­ri­ety of rea­sons.

In Au­gust 2013, The Cana­dian Press filed a re­quest to the Privy Coun­cil Of­fice, ask­ing for any records cre­ated since March about the four se­na­tors. Of­fi­cials re­fused to re­lease 27 of 28 rel­e­vant pages, pro­vid­ing only what O’Reilly de­scribed as “in­nocu­ous in­for­ma­tion” like let­ter­head, sig­na­tures, dates and names.

The in­for­ma­tion com­mis­sioner took the PMO to court in late 2015, be­liev­ing of­fi­cials “erred in fact and in law” when they de­clared every word on the 27 pages to be ex­empt from the Ac­cess to In­for­ma­tion Act.

O’Reilly found the doc­u­ments had fac­tual in­for­ma­tion that should have been re­leased, in­clud­ing de­ci­sions Harper made at the time, and that por­tions con­sid­ered to be le­gal ad­vice were noth­ing of the kind. The judge also re­jected govern­ment ar­gu­ments that some of the in­for­ma­tion con­tained sen­si­tive per­sonal in­for­ma­tion — ar­gu­ments that ap­pear to have been ap­plied to “dis­cre­tionary fi­nan­cial ben­e­fits.”

Fur­ther de­tails, again, were deleted from the writ­ten rul­ing.


Sen. Mike Duffy was ac­quit­ted of all charges re­lat­ing to a 2013 Se­nate spend­ing scan­dal. A Fed­eral Court judge has ruled some doc­u­ments re­lated to se­na­tors were wrongly clas­si­fied, mak­ing them ex­empt from pub­lic re­lease.

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