[1997] 2 F.C. 907
T-2366-95
Hien Do-Ky, Vietnamese Refugee Sponsorship Committee (Applicants)
v.
The Minister of Foreign Affairs and International Trade (Respondent)
Indexed as: Do-Ky v. Canada (Minister of Foreign Affairs and International Trade) (T.D.)
Trial Division, Nadon J.—Ottawa, November 18, 1996 and February 6, 1997.
Access to information — Judicial review of Information Commissioner’s decision upholding non-disclosure of diplomatic notes under Act, s. 15 — Three notes sent from Canadian government to foreign state — Fourth sent from foreign state to Canadian government — S. 15(1)(h) permitting non-disclosure of any record containing information which could reasonably be expected to be injurious to conduct of international affairs — Foreign state objecting to disclosure — (1) All four notes should be considered under s. 15, though correspondence from foreign state could also be considered under s. 13 (information obtained in confidence from foreign state) — Notes forming conversation between governments — Pointless to maintain confidentiality of one half of conversation when that half could be inferred by reading other half — (2) Notes exempt because of nature as diplomatic notes — Confidential regardless of contents — (3) Reasonable apprehension of harm if notes released — To act contrary to direct request of foreign state would harm Canada’s reputation in international community.
This was an application for judicial review of the Information Commissioner’s decision upholding the non-disclosure of diplomatic notes under Access to Information Act, subsection 15(1). Paragraph 15(1)(h) provides that the head of a government institution may refuse to disclose any record, including diplomatic correspondence exchanged with foreign states, that contains information the disclosure of which could reasonably be expected to be injurious to the conduct of international affairs. Three of the notes had been sent from the Canadian government to the government of a foreign state. The fourth note had been sent from the foreign state to the Canadian government. The note from the foreign state was originally not disclosed under paragraph 13(1)(a), which provides that the head of a government institution shall refuse to disclose any record requested under the Act that contains information that was obtained in confidence from the government of a foreign state. The government of the country with which the exchange had taken place objected to the release of the notes.
The issues were: (1) whether all of the notes should be considered under section 15, or whether the two classes of notes should be dealt with under separate provisions of the Act (which in turn depended upon whether the notes could be dealt with independently of one another or whether they had to be considered as composing a single discussion); (2) whether section 15 addresses the special nature of diplomatic correspondence or only the information contained therein; and (3) whether the government had discharged the burden of proving that the head of the institution which refused to disclose the notes had “reasonable grounds” for doing so, as required by section 50.
Held, the application should be denied.
(1) There is some overlap between paragraphs 13(1)(a) and 15(1)(h) as correspondence received from a foreign state could conceivably fall into both categories. The section 15 category is broader in scope and includes much more than foreign correspondence. There is a further distinction in that documents which are classified under section 15 must reasonably be expected to cause injury before they can be exempted under the Act whereas foreign correspondence is prima facie exempted unless it can be brought within one of the enumerated exceptions. The Act neither prevents the head of a government institution from excluding a document on the basis of more than one provision nor requires that the head of the government institution bring the document within every conceivable provision of the Act. It is sufficient if the head of a government institution finds that a record is exempted by a particular provision of the Act.
The four notes should be dealt with as a single package. As they form a conversation between governments, it would serve little purpose to maintain the confidentiality of one half of the conversation when that half could be inferred from a reading of the other half. All of the notes may be dealt with under section 15 despite the additional protection afforded to the documents which may also fall to be considered under subsection 13(1).
(2) Subsection 15(1) refers to information which, if disclosed, would reasonably result in injury. The paragraphs thereafter which serve as general examples of the general principle are phrased as information: “relating to”, “obtained or prepared for the purpose of” and “on methods of”. Paragraph (h) alone refers to information which “constitutes” diplomatic correspondence. For information to “constitute” something, it must mean that it makes a thing what it is. This is something more than merely information which is contained in a record. On this basis, the government seeking to exempt diplomatic notes could reasonably do so because they are diplomatic notes and not necessarily on the basis of the information contained in the notes. Therefore, the government may lawfully exempt diplomatic notes from release not necessarily because the information therein is sensitive, but simply because the notes constitute confidential diplomatic communications and the international community has a reasonable expectation that such notes will remain confidential. This is especially true when the foreign country has explicitly requested that the correspondence not be released.
(3) When the Court is reviewing a decision not to release documents under section 50, the government must show that the documents fall within the enumerated category and that a reasonable person would expect harm to result from the release of those documents. In consideration of the fact that the nature of the notes must be taken into account in assessing the probability of harm which would result from their disclosure, the government had and continues to have a reasonable apprehension of harm if it were to disclose the notes. The harm is more than speculative because the foreign state specifically stated that it did not want the notes to be made public. To act contrary to a direct request from a foreign state would harm Canada’s reputation in the international community as a state which deals fairly with its counterparts. Additionally, as the entire international diplomatic process relies on integrity and trust, Canada would, if it released diplomatic notes without concern for the opinions of foreign states affected, harm its own ability to function effectively on the international level. The criteria in section 50 were met.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Access to Information Act, R.S.C., 1985, c. A-1, ss. 2(1), 4(1), 13, 15, 25, 41, 47(1), 48, 49, 50.
CASES JUDICIALLY CONSIDERED
REFERRED TO:
Canada (Information Commissioner) v. Canada (Prime Minister), [1993] 1 F.C. 427 (1992), 12 Admin. L.R. (2d) 81; 49 C.P.R. (3d) 79; 57 F.T.R. 180 (T.D.); Canada Packers Inc. v. Canada (Minister of Agriculture), [1989] 1 F.C. 47 (1988), 53 D.L.R. (4th) 246; 32 Admin. L.R. 178; 26 C.P.R. (3d) 407; 87 N.R. 8 (C.A.); Rubin v. Canada (Canada Mortgage and Housing Corp.), [1989] 1 F.C. 265 (1988), 52 D.L.R. (4th) 671; 19 F.T.R. 160; 86 N.R. 186 (C.A.); Air Atonabee Ltd. v. Canada (Minister of Transport) (1989), 27 C.P.R. (3d) 180; 27 F.T.R. 194 (F.C.T.D.); Ottawa Football Club v. Canada (Minister of Fitness and Amateur Sports), [1989] 2 F.C. 480 (1989), 23 C.P.R. (3d) 297; 24 F.T.R. 62 (T.D.); Montana Band of Indians v. Canada (Minister of Indian and Northern Affairs), [1989] 1 F.C. 143 [1988] 5 W.W.R. 151; (1988), 59 Alta. L.R. (2d) 353; 18 F.T.R. 15 (T.D.); Ternette v. Canada (Solicitor General), [1992] 2 F.C. 75 (1991), 86 D.L.R. (4th) 281; 39 C.P.R. (3d) 371; 49 F.T.R. 161 (T.D.); X v. Canada (Minister of National Defence), [1992] 1 F.C. 77 (1991), 46 F.T.R. 206 (T.D.).
AUTHORS CITED
Shorter Oxford English Dictionary on Historical Principles, 3rd ed. rev. Oxford: Clarendon Press, 1990. “constitute”.
APPLICATION for judicial review of the Information Commissioner’s decision upholding the non-disclosure of diplomatic notes on the basis of Access to Information Act, subsection 15(1). Application dismissed.
COUNSEL:
David Matas for applicants.
Geoffrey S. Lester for respondent.
SOLICITORS:
David Matas, Winnipeg, for applicants.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
Nadon J.: This is an application for judicial review of a decision that certain diplomatic notes exchanged between Canada and another country could not be released under the Access to Information Act, R.S.C., 1985, c. A-1 (the Act). This review is made pursuant to section 41 of the Act which states:
41. Any person who has been refused access to a record requested under this Act or a part thereof may, if a complaint has been made to the Information Commissioner in respect of the refusal, apply to the Court for a review of the matter within forty-five days after the time the results of an investigation of the complaint by the Information Commissioner are reported to the complainant under subsection 37(2) or within such further time as the Court may, either before or after the expiration of those forty-five days, fix or allow.
The facts of this case will be dealt with in a very succinct manner in order to conform with subsection 47(1) of the Act which provides:
47. (1) In any proceedings before the Court arising from an application under section 41, 42 or 44, the Court shall take every reasonable precaution, including, when appropriate, receiving representations ex parte and conducting hearings in camera, to avoid the disclosure by the Court or any person of
(a) any information or other material on the basis of which the head of a government institution would be authorized to refuse to disclose a part of a record requested under this Act; …
It should be noted that the memorandum of each party and the affidavit upon which the respondent relies are all filed as confidential documents by order of McGillis J. dated April 3, 1996 and the hearing was held in camera. The respondent’s affiant was cross-examined on his affidavit by the applicants and that transcript is also confidential.
The applicants originally applied for the release of two specific notes and any diplomatic note relating to a case summary appended to the request. Foreign Affairs subsequently identified a total of four notes which fell within the scope of the March 28, 1994 request.
By letter dated July 28, 1994 the applicants were notified by the Foreign Affairs Coordinator, Access to Information and Privacy, that the notes requested were exempt from release under subsection 15(1) of the Act as the release of the documents might reasonably be expected to be injurious to Canada’s international relations. On August 19, 1994 the coordinator received notice from the Office of the Information Commissioner that there had been a complaint made by the applicants against the exemption claimed for these notes.
After further discussion with the Information Commissioner and more references and discussions with the relevant government departments, in February of 1995 the coordinator took the position that sufficient time had elapsed that the country with which this exchange had taken place could be approached with respect to the release of the notes. However, in September 1995 the government of that country notified the Government of Canada that they objected to the release of the notes as the issues discussed therein continued to be sensitive topics in that state. Because of the position taken by this foreign state, the coordinator contended that the Canadian government could not possibly release these notes in the face of a direct request to keep the notes confidential.
The Information Commissioner agreed with the Department of Foreign Affairs and thus communicated to the applicant that the release of the information would reasonably be expected to be injurious to the conduct of international affairs as such a release would be in direct conflict with the expressed wishes of that foreign state. The notes thus continued to be exempt from disclosure pursuant to subsection 15(1).
Three of the notes at issue were sent from the Canadian government to the government of the foreign state (Country D). The last note in issue was sent from Country D to the Canadian government in response to one of the three notes mentioned above.
The note from Country D was determined to have been obtained in confidence and was therefore originally not disclosed according to the terms of paragraph 13(1)(a) of the Act. The Information Commissioner upheld the non-disclosure of all of the documents on the basis of subsection 15(1) of the Act because the release “could reasonably be expected to be injurious to the conduct of international affairs” in that, “in the absence of consent from [Country D], Canada would risk breaching diplomatic conventions by disclosing such notes … [s]uch a breach could adversely affect Canada’s diplomatic exchanges … with other countries as well”.
The applicants submit that the respondent made the following errors of law when it refused to disclose the information requested:
1. The respondent erred in law in beginning with the premise that diplomatic notes should not be disclosed as this presumption violates the scheme of the Act and fetters the discretion of the person making the determination.
2. The respondent erred in law in not considering the individual facts of this case in making its determination.
3. The respondent erred in law in treating the four notes as an unseverable group. This error led the respondent to apply the mandatory exemption of section 13 to all of the notes instead of applying the section 15 discretion. No discretion was exercised.
4. The respondent erred in law by applying a test of “normal diplomatic practice” instead of the more onerous test provided in subsection 15(1) of “reasonable expectation of injury to the conduct of international affairs”.
5. The respondent erred in law in examining the effect of the disclosure of the record itself instead of focussing on the effect of the release of the information contained in the record. The Act requires the disclosure of the records based on the nature of the information contained in the record, and not based on the nature of the record.
6. The respondent erred in law in not disclosing information which falls under subsection 13(1) but which has been made public and thus falls within the exception of subsection 13(2).
7. The respondent erred in law in rationalizing its decision on the basis that the information in the notes would cast doubt on the seriousness of the commitment of Country D to live up to its international obligations. This interpretation of the information is not self-evident and it is therefore unreasonable to conclude that it would be apparent to the world.
8. The respondent erred in law in failing to make an assessment of whether the reason given by Country D or its own officials is justifiable according to the test set out in the Act.
9. The respondent erred in not considering the two notes explicitly requested separately from the request for “any diplomatic note relating to the case”. The respondent only turned its mind to the entire package of four notes.
10. The respondent erred in law in seeking the consent of the government of Country D because, in failing to get that consent, the respondent did not independently consider whether the release of the information would be injurious to the conduct of international affairs.
There are really only three issues which need to be decided in order to address all of the issues raised by the applicants. The first is whether all of the notes fall to be considered under section 15 or whether the two classes of notes must be dealt with under separate provisions of the Act. In this vein it must be considered whether the notes can be dealt with independently of one another or whether they must be considered as composing a single discussion. The second issue is whether section 15 is meant to address the special nature of diplomatic correspondence or whether only the information contained in such correspondence is addressed by that section. The third issue is whether the government has satisfied its burden of proving that the head of the institution which refused to disclose the notes in issue had “reasonable grounds” for doing so, as section 50 requires.
Analysis
In reviewing the notes at issue in this case I have considered the guidelines set out by Rothstein J. in Canada (Information Commissioner) v. Canada (Prime Minister), [1993] 1 F.C. 427 (T.D.). I have considered all of the following principles in reaching my conclusions. (See pages 444-446.)
1. The exceptions to access require a reasonable expectation of probable harm. (Canada Packers Inc. v. Canada (Minister of Agriculture), [1989] 1 F.C. 47 (C.A.), at page 60, per MacGuigan J.A.)
2. The considered opinion of the Information Commissioner should not be ignored. (Rubin v. Canada (Canada Mortgage and Housing Corp.), [1989] 1 F.C. 265 (C.A.), at page 272, per Heald J.A.)
3. Use of the information is to be assumed in assessing whether its disclosure would give rise to a reasonable expectation of probable harm. (Air Atonabee Ltd. v. Canada (Minister of Transport) (1989), 27 C.P.R. (3d) 180 (F.C.T.D.), at pages 210-212, per MacKay J.)
4. It is relevant to consider if the information sought to be kept confidential is available from sources otherwise available by the public and whether it could be obtained by observation or independent study by a member of the public acting on his or her own. (Air Atonabee, supra, at pages 202-203.)
5. Press coverage of a confidential record is relevant to the issue of expectation of probable harm from its disclosure. (Canada Packers, supra, at page 63.)
6. Evidence of the period of time between the date of the confidential record and its disclosure is relevant. (Ottawa Football Club v. Canada (Minister of Fitness and Amateur Sports), [1989] 2 F.C. 480 (T.D.), at page 488, per Strayer J. (as he then was).)
7. Evidence that relates to consequences that could ensue from disclosure that describe the consequences in a general way falls short of meeting the burden of entitlement to an exemption from disclosure. (Ottawa Football Club, supra, at page 488.)
8. Each distinct record must be considered on its own and in the context of all the documents requested for release, as the total contents of the release are bound to have considerable bearing on the reasonable consequences of its disclosure. (Canada Packers, supra, at page 64.)
9. Section 25 of the Act provides for severance of material in a record that can be disclosed from that which is protected from disclosure under an exemption provision. The severance must be reasonable. To disclose a few lines out of context would be worthless. (Montana Band of Indians v. Canada (Minister of Indian and Northern Affairs), [1989] 1 F.C. 143 (T.D.), at pages 160-161, per Jerome A.C.J.)
10. Exemptions from disclosure should be justified by affidavit evidence explaining clearly the rationale exempting each record. (Ternette v. Canada (Solicitor General), [1992] 2 F.C. 75 (T.D.), at pages 109-110, per MacKay J.)
The Act very clearly singles out records received in confidence from the government of a foreign state.
13. (1) Subject to subsection (2), the head of a government institution shall refuse to disclose any record requested under this Act that contains information that was obtained in confidence from
(a) the government of a foreign state …
…
(2) The head of a government institution may disclose any record requested under this Act that contains information described in subsection (1) if the government, organization or institution from which the information was obtained
(a) consents to the disclosure; or
(b) makes the information public.
However, section 15 also deals with any record, the disclosure of which might be injurious to the conduct of international affairs.
15. (1) The head of a government institution may refuse to disclose any record requested under this Act that contains information the disclosure of which could reasonably be expected to be injurious to the conduct of international affairs, the defence of Canada or any state allied or associated with Canada or the detection, prevention or suppression of subversive or hostile activities, including, without restricting the generality of the foregoing, any such information
…
(h) that constitutes diplomatic correspondence exchanged with foreign states or international organizations of states or official correspondence exchanged with Canadian diplomatic missions or consular posts abroad; …
There is some overlap here as correspondence received from a foreign state could conceivably fall into both categories. The section 15 category is more broad in scope and includes much more than foreign correspondence. There is a further distinction in that documents which fall to be classified under section 15 must reasonably be expected to cause injury before they can be exempted under the Act whereas foreign correspondence is prima facie exempted unless it can be brought within one of the enumerated exceptions.
Nothing in the Act prevents the head of a government institution from excluding a document on the basis of more than one provision. Furthermore, there is nothing in the Act which requires that the head of the government institution bring the document within every conceivable provision of the Act. If the head of the government institution finds that a record falls to be exempted within a particular provision of the Act then that is satisfactory.
It is to be noted in this context that the applicant has submitted that the note from Country D should be released because the information in it has been made public. However, subsection 13(2) does not require the release of records containing information which has been made public. Subsection 13(2) merely permits the government to release such documents as a limited exception to the general rule against disclosure. In the general structure of the scheme however, if those documents are not to be released, the head of the government institution must be able to give reasons justifying the decision not to release. In the case of information received from a foreign state and made public by that state, the head of the Canadian government institution called upon to apply this Act may still avail him or herself of the other provisions of the statute. Furthermore, in this case there is no clear evidence that the government of Country D made the information public. Although the case summary contains some of the information, the applicant has failed to establish the source of that information and whether that information is truly “public” or only within the personal knowledge of the applicant. The Court is not in a position to simply assume that it was the government of Country D which released the information.
There is no evidentiary burden on the Canadian government to establish that the diplomatic note sent to Canada is not public. The government is not, in these circumstances, asked to prove a negative premise. There is no proof before me either that the information was public nor that it was released officially by the government of Country D.
The respondent has alleged that the notes in issue cannot be dealt with individually as they together constitute a single dialogue. In their approaches to the government of Country D, Foreign Affairs dealt with the notes as a package and the government of Country D responded on that basis. Although the treatment of these notes as a package will affect the assessment of whether the refusal to disclose some or all of them was reasonable, it does not violate the Act on its face in any way. Indeed, as the notes do in fact form a conversation between governments, it would serve little purpose to maintain the confidentiality of one half of the conversation when that half could be inferred from a reading of the other half. Thus, with respect to the first issue, I find that all of the notes may be dealt with under section 15 despite the additional protection afforded to documents which may also fall to be considered under subsection 13(1). Additionally, in the circumstances of this case, I find it unavoidable to deal with all four notes as a single package.
In its letter to the applicants the respondent justified its non-disclosure of each of the four notes on paragraph 15(1)(h), that is that the records requested constitute diplomatic correspondence the disclosure of which “could reasonably be expected to be injurious to the conduct of international affairs”. The second issue therefore which falls to be decided is whether the notes can be exempted, not necessarily on the basis of the information contained in them, but because of their nature as diplomatic correspondence.
International law is a system which has developed on the basis of custom and comity. Customary international law in turn depends on the consistent and general practice among states and the general acceptance by states of these customs. The customary way of conducting the business of states has allowed international relations to proceed on predictable lines during times of both war and peace. Similar to the solicitor-client privilege which allows for open and honest discourse between a solicitor and his or her client, the confidentiality of international communication allows states to negotiate delicate situations frankly and quickly. If Canada or any other nation were to begin to reveal diplomatic correspondence, such a practice could reasonably be anticipated to injure the conduct of international affairs.
Diplomatic relations can be fragile. Diplomatic notes are the most formal type of diplomatic communication and represent a conversation between two sovereign governments. I will quote some general passages from the affidavit of the affiant for the respondent. Although this affidavit was ordered to be filed confidentially by McGillis J., the portions which I quote discuss generalities only and do not disclose any specific details of the case before me. The affiant for the respondent stated:
Whatever information they contain, diplomatic Notes have this in common: they represent a formal channel of communication between governments through which they have elected to conduct their dialogue or transact their business. The fact of opening and using this channel, as much as the information conveyed, is significant.
It should be made clear at this point that the affiant is a career diplomat, having worked for Foreign Affairs in various posts for over twenty years. This testimony on the nature of diplomatic relations and the role of diplomatic notes is persuasive and warrants belief in the absence of evidence to the contrary. Further on the affiant states:
[T]hese traditions matter in diplomacy … they have developed over centuries as a means of conducting business between sovereign states in a smooth and mutually respectful way. Indeed, they have often evolved as a means of avoiding serious incidents or even war resulting from disputes over precedents, perceived insults, or conduct that may cast doubt on, for example, the sovereignty or integrity of a state or the legitimacy of its ruler. When the normal means of conducting polite, respectful dialogue between nations that may not be polite and respectful to each other erodes, the ability of the international community to resolve disputes and conduct normal diplomatic intercourse erodes to that extent.
The general structure of the Act focuses on information and not documents per se. This is clear from a reading of subsection 2(1) which refers to “access to information in records”.
2. (1) The purpose of this Act is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government.
Furthermore, it is clear from a reading of section 2 as well as section 4 that the presumption is on information being made available and the exceptions to public access should be the exception. Subsection 4(1) reads:
4. (1) Subject to this Act, but notwithstanding any other Act of Parliament, every person who is
(a) a Canadian citizen, or
(b) a permanent resident within the meaning of the Immigration Act,
has a right to and shall, on request, be given access to any record under the control of a government institution.
Despite the fact that both sections 13 and 15 are under the general heading “Exemptions”, sections 2 and 4 require that these sections be interpreted as narrowly and specifically as possible.
The specific question which falls to be decided here is whether paragraph 15(1)(h) refers to the information contained in a document or specifically to information which takes the form of diplomatic correspondence. In subsection 15(1) the language refers to information which, if disclosed, would reasonably result in injury. The paragraphs thereafter which serve as examples of the general principle are phrased as information: “relating to”; “obtained or prepared for the purpose of”; and “on methods of”. However, paragraph (h) alone refers to information which “constitutes” diplomatic correspondence. Surely Parliament did not adopt special language for this single paragraph without purpose. If Parliament had intended to convey the same idea as in the other paragraphs with respect to paragraph (h) it could have written “information relating to diplomatic correspondence” or “information contained in diplomatic correspondence”.
What does it mean then for information to “constitute” something. In short it must mean that it is constitutive, that it “makes a thing what it is” (C. T. Onions, ed., Shorter Oxford English Dictionary on Historical Principles, 3rd ed. rev., vol. 1 (Oxford: Clarendon Press, 1990), at page 408). This is something more than merely information which is contained in a record. This interpretation is in accord with the special status of these notes and the general nature of diplomatic correspondence and international relations discussed above. On this basis, the government seeking to exempt diplomatic notes could reasonably do so because they are diplomatic notes and not necessarily on the basis of the information contained in the notes.
Therefore, in the case of diplomatic notes, the government may lawfully exempt them from release because to release them would reasonably be expected to harm international relations. This is true not necessarily because the information therein is sensitive but simply because the notes constitute confidential diplomatic communications and the international community has a reasonable expectation that such notes will remain confidential. This is especially true when they have explicitly requested that they not be released.
The third issue is very closely related to the second. The nature of the documents lends itself to the analysis of whether the government had reasonable grounds for concluding that the release would injure international relations. The respondent government bears the burden in these proceedings:
48. In any proceedings before the Court arising from an application under section 41 or 42, the burden of establishing that the head of a government institution is authorized to refuse to disclose a record requested under this Act or a part thereof shall be on the government institution concerned.
The appropriate test to be considered is found in section 50 which should be compared with section 49:
49. Where the head of a government institution refuses to disclose a record requested under this Act or a part thereof on the basis of a provision of this Act not referred to in section 50, the Court shall, if it determines that the head of the institution is not authorized to refuse to disclose the record or part thereof, order the head of the institution to disclose the record or part thereof, subject to such conditions as the Court deems appropriate, to the person who requested access to the record, or shall make such other order as the Court deems appropriate.
50. Where the head of a government institution refuses to disclose a record requested under this Act or a part thereof on the basis of section 14 or 15 or paragraph 16(1)(c) or (d) or 18(d), the Court shall, if it determines that the head of the institution did not have reasonable grounds on which to refuse to disclose the record or part thereof, order the head of the institution to disclose the record or part thereof, subject to such conditions as the Court deems appropriate, to the person who requested access to the record, or shall make such other order as the Court deems appropriate.
The sections enumerated in section 50 all deal with “information the disclosure of which could reasonably be expected to be injurious”. When a government refuses to release documents which fall to be reviewed under section 49, the Court looks only at the category or type of document at issue. This is all that is required by section 49. However, when the Court is reviewing a decision not to release documents under the terms of section 50 the government must show that the documents fall within the enumerated category and that a reasonable person would expect harm to result from the release of those documents. Rothstein J. discussed the role of the Court under section 50 in Canada (Information Commissioner) v. Canada (Prime Minister), supra, at pages 478-481.
In the case at bar, what is being considered is the validity of an opinion of a government official that disclosure of specific government documents could reasonably be expected to result in harm to the Government’s conduct of federal-provincial affairs. While no general rules as to the sufficiency of evidence in a section 14 case can be laid down, what the Court is looking for is support for the honestly held but perhaps subjective opinions of the Government witnesses based on general references to the record. Descriptions of possible harm, even in substantial detail, are insufficient in themselves. At the least, there must be a clear and direct linkage between the disclosure of specific information and the harm alleged. The Court must be given an explanation of how or why the harm alleged would result from disclosure of specific information. If it is self-evident as to how and why harm would result from disclosure, little explanation need be given. Where inferences must be drawn, or it is not clear, more explanation would be required. The more specific and substantiated the evidence, the stronger the case for confidentiality. The more general the evidence, the more difficult it would be for a court to be satisfied as to the linkage between disclosure of particular documents and the harm alleged.
In addition, allegations of harm from disclosure must be considered in light of all relevant circumstances. In particular, this includes the extent to which the same or similar information that is sought to be kept confidential is already in the public realm. While the fact that the same or similar information is public is not necessarily conclusive of the question of whether or not there is a reasonable expectation of harm from disclosure of the information sought to be kept confidential, the burden of justifying confidentiality would, in such circumstances, be more difficult to satisfy.
…
These are all reasons why the Government might, but not necessarily probably would, suffer harm from the disclosure of its confidential information. I can even appreciate the argument made with respect to misunderstandings in this case even though the jurisprudence tends to discount this type of concern because it is normally within the power of the party forced to release the record to provide additional information to clarify misunderstandings. If it could be demonstrated that considering all the circumstances, it is reasonable to expect the harm described from the release of the specific information in question, then the Government would be entitled to confidentiality. This requires evidence linking the harm described and the disclosure of specific pages of the record and an explanation of why, in all the circumstances, the disclosure of the contents of the record would cause such harm.
In consideration of the fact that the nature of these notes must be taken into account in assessing the probability of harm which would result from their disclosure, and given the affidavit evidence adduced by the respondent, I have no difficulty in finding that the government had and continues to have a reasonable apprehension of harm if they were to disclose these notes in this case.
The harm is more than speculative because Country D was specifically asked about the release of the notes and answered that they did not want the notes to be made public. This alone justifies nondisclosure despite the fact that some of the information contained in one of the notes had already been accessed by the applicant. To release these documents would be a diplomatic breach. To act contrary to a direct request from a foreign state would harm the reputation of Canada in the international community as a state which deals fairly with its counterparts. Additionally, as the entire international diplomatic process relies on integrity and trust, Canada would, if it released diplomatic notes without concern for the opinions of foreign states affected, harm its own ability to function effectively on the international level.
Section 15 is an “injury exemption” and not a “class exemption” like section 13. (X v. Canada (Minister of National Defense), [1992] 1 F.C. 77 (T.D.), per Denault J.) These notes are not exempt because they are diplomatic notes but because the nature of the documents as diplomatic notes makes them sensitive because they are expected to be confidential documents irrespective of their contents. This must be true as even the Government acknowledges that there are times when documents will not be exempt even though they are diplomatic notes merely because they are not expected to be kept confidential. For example, notes which constitute treaties, or where the governments concerned have established a precedent that certain communications may be made public or certain communications with international organizations. However, the nature of the records is clearly relevant in the assessment of injury. This justifies the different wording used by Parliament which in fact was essential to the continued smooth conduct of Canada’s international affairs.
The affiant for the respondent has identified specific injury which could reasonably be expected to occur if these notes were released.
[O]ther countries take these traditions seriously. The publication of a diplomatic Note, without the permission of the recipient, or even before the recipient has had time to react, is regarded as an act of megaphone diplomacy, propaganda, rudeness, or even bullying. When nations conduct their dialogues through published diplomatic Notes, as when individuals conduct a public dialogue in the press, this is deemed to be a sign that more normal channels of dialogue have broken down and that both sides are simply playing to the galleries.
That like all diplomatic conventions, those governing diplomatic Notes may undergo change, and tradition should never impede utility. However, Canada cannot afford to get too far in front of the expectations of those with whom we conduct business. We are not a great power. When we do not conform, or are seen not to conform, to their expectations of us, other countries do not change their practices to accommodate us. They simply adjust their expectations of us and react accordingly.
That in short, to make a practice of disclosing diplomatic Notes, regardless of their content (though their content could also be confidential or of a nature to cause injury in and of itself) would cause real, current, and probable injury to the conduct of international affairs by eroding the confidence of other countries that Canada could be counted on to follow the norms and conventions of diplomacy, including the protection of confidential information and sources and the treatment of both with discretion. Casting doubt on one element of these traditions casts doubt on all.
On the basis of this evidence and the documents before me I am satisfied that the criteria stipulated in section 50 have been met.
In conclusion there are a few specific allegations of the applicants which I would like to address.
First, it is not a fettering of discretion to seek advice from the government departments most knowledgeable and directly involved with the situation at hand. In fact, not to do so would be irresponsible. Provided that the individual who is responsible for exercising the discretion in fact turns his or her mind to the issues and weighs and considers all the facts, there is no fettering of discretion. Additionally, it is not the role of the Court to examine the process by which a decision taken under this Act is reached. The Court’s role is to merely consider the reasonableness of an expectation of harm.
Second, it must be clearly stated that the notes were ultimately exempted because they were diplomatic correspondence, and, when approached, the foreign state involved in the dialogue explicitly requested they remain in confidence. Whether the respondent government begins with caution in the case of diplomatic correspondence is irrelevant. What is relevant is that, in the case before me, the second-party government asked for confidentiality and Canada cannot breach the trust placed in it without suffering considerable harm to its reputation in the international community and ipso facto to its international relations.
Third, in assessing the injury to be expected on release of the notes it was proper for the respondent to consider normal diplomatic practice as this would be the best standard by which to judge probable harm.
Fourth, the respondent is entitled to inquire whether the information might cast doubt on the commitment of another country to honour its international obligations. Whether this interpretation is reasonable will affect whether the government had a reasonable expectation of injury.
Finally, once a state requests that diplomatic correspondence remain confidential there is no need for the Canadian government to assess the reasons of that country. It is sufficient if they have made the request of the Canadian government. Indeed, it would be a diplomatic lapse were the Canadian government to sit in judgment of the rationale of the foreign state except in the most extreme circumstances.
For these reasons, the application shall be denied.