Tories in court to battle access law

by CAMPBELL CLARK — May 13, 2008

OTTAWA -- Federal government lawyers were in court yesterday to fight against a principle that Prime Minister Stephen Harper's Conservatives pledged in the last election campaign to protect: that cabinet ministers and their offices are covered by the country's access-to-information law.

In a major case over the scope of the law, Mr. Harper's government is defending former Liberal prime minister Jean Chrétien's refusal to hand over portions of his agendas that were requested by the Canadian Alliance, a predecessor party of the governing Conservatives.

The week-long hearing before the Federal Court of Canada pits the government against the Information Commissioner of Canada in a battle over four cases that revolve around the same question: whether cabinet ministers and their offices are part of the government departments they oversee.

Raynold Langlois, the lawyer representing Information Commissioner Robert Marleau, argued that the Gomery inquiry into the sponsorship scandal showed that ministers and their aides get involved in decisions on how government programs are administered.

"What we've learned from the Gomery commission is strikingly relevant," he said.

In his report into the sponsorship scandal, judge John Gomery recommended that the law be clarified so it is clear that it applies to ministers' offices. Mr. Harper's Conservatives promised to do just that in their 2006 election platform, but have not.

One of the cases being argued at the Federal Court stems from the 1999 request for Mr. Chrétien's agendas made by Laurie Throness, then a researcher for the Canadian Alliance and now an adviser to Conservative Health Minister Tony Clement.

The Privy Council Office, the central government department headed by the prime minister, replied that it did not have the agendas - but the originals were still in computers in the Prime Minister's Office.

While the Information Commissioner concedes that some of the entries in the agendas would not have been released because they are about personal or partisan political activities, entries about government business are subject to the access law.

But the government now argues that anything created by the minister's office, or archived there, is not covered by the Access to Information Act.

The act requires that a request be sent to a government "institution," such as the Defence Department, Transport Canada or the Privy Council Office. And although each department is overseen by a minister and his or her staff, the government now argues that only the civil servants are part of the department.

In another one of the cases being argued in court this week, a reporter asked for documents related to a meeting between former defence minister Art Eggleton, his deputy minister, the country's top general and two of Mr. Eggleton's aides.

But because it was Mr. Eggleton's aides who took notes, rather than civil servants, the journalist was told that no records were found.

Mr. Langlois, a lawyer representing the Information Commissioner, said that an investigation later found that civil service files held more than 700 pages of documents related to the meeting - but department officials did not realize that because they did not have the notes that described what the meeting was about.

The government's lawyer, Chris Rupar, will lay out his arguments later this week, and declined to comment yesterday. A Justice Department spokesman also declined to comment.

Source:The Globe and Mail