Canada ( Information Commissioner ) v. Canada ( Minister of National Defence )
T-2732-95
Dubé J.
23/9/96
10 pp.
Application for review filed pursuant to Access to Information Act, s. 42(1)(a) to determine legal consequences of deemed refusal to disclose based on ongoing failure to give access to records or parts thereof requested by Information Commissioner of Canada-Respondent failing on number of occasions over seventeen-month period to give notice in writing as to whether or not access to be given to 1204-page document requested by requester or to part thereof-With requester's authorization, Commissioner filing application for review of respondent's deemed refusal in Federal Court on December 22, 1995-Respondent informing requester by notice in writing of its final decision to refuse to give access to final 22 pages of requested record on basis of Act, ss. 13(1)(a),(b), 15(a), 19(1), 21(1)(a), (b)-Act, s. 2(1) stating purpose of Act extension of access to information in records under control of government institution, subject to some necessary, limited, specific exceptions-Cases holding delay in invoking exception as justification for refusal to disclose record or part thereof may be fatal in that institution in question bound by reasons initially set out in notice of refusal, failing any possibility of subsequent alteration following investigation by Commissioner as to merits of exception-Commissioner contending since refusal of disclosure out of time, respondent's right to cite exception in support of said refusal expired-Respondent arguing application inconsistent with spirit of Act since Act failing to prescribe any specific procedure for cases in which applicant cites deemed refusal-Act providing comprehensive procedure for considering requester's complaints concerning merits of exceptions relied on by federal institution-Deemed refusal per se not giving Commissioner right to abdicate statutory duty to make investigation, issue report-Respondent submitting deemed refusal resulting from partial failure to disclose within time prescribed by Commissioner rebuttable presumption-Application for review premature, must be dismissed-In circumstances of case, not deemed refusal to disclose based on continuing failure to disclose by institution in question, but final disclosure out of time-Disclosure out of time not necessarily nullifying institution's right to avail itself of exemptions, exceptions provided by Act while Commissioner still has opportunity to consider merits of said exemptions, exceptions and solicit comments of institution-Since respondent's excessive delays gave rise to entire proceeding and since proceeding has raised important new principle, costs awarded to applicant under Act, s. 53(2)-Access to Information Act, R.S.C., 1985, c. A-1, ss. 2(1), 13(1)(a),(b), 15(a), 19(1), 21(1)(a),(b), 42(1)(a).