Chretien's agenda books off limits, with an asterisk, court rules

In a complex ruling Thursday, the court said archived copies of the agenda entries held by the Prime Minister's Office fall outside the scope of the access law.

But the court added that portions of Chretien's agendas provided to the RCMP for security purposes are available through the law, which allows people who pay $5 to request a range of government files.

A few agenda pages in the possession of the Privy Council Office, where the prime minister's bureaucrats toil, are also accessible under the law, Justice Michael Kelen said in his 96-page decision.

An aide to Chretien would routinely fax Chretien's agenda to the Privy Council clerk with instructions to later destroy the pages. Yet four pages of agenda records from the spring and summer of 1999 were found within PCO, having survived due to "an oversight" by officials.

However, Kelen said that under provisions of the access law names of private citizens should be stripped from any pages of the prime minister's agendas released by the Mounties or the Privy Council. "This would frustrate an access requester who was seeking information about whether the PM met with a particular private individual."

At issue in the case was the prickly and longstanding question of what, if any, records in ministerial offices are subject to the Access to Information regime.

The court weighed the circumstances of four access files, including a June 1999 effort to obtain daily agendas detailing all meetings and other activities of former Liberal prime minister Jean Chretien during the previous five years.

Requester Laurie Throness, currently an adviser to Health Minister Tony Clement, was then a researcher for the Canadian Alliance, a forerunner of the federal Conservatives.

The three other cases included requests for the same agendas from the RCMP, the daily agendas of David Collenette when he was Liberal transport minister, and notes from meetings involving then-defence minister Art Eggleton, his deputy minister and the chief of defence staff.

Kelen concluded neither the Prime Minister's Office nor the ministers' offices are "government institutions" subject to the access law.

However, he said a record "under the control of a government institution" - and therefore covered by the access law - includes documents in the PMO and other ministers' offices that relate to a departmental matter and could be requested and reasonably obtained by a deputy minister or other senior official.

With this in mind, Kelen said that Chretien's agendas were provided to the Privy Council clerk "under strict conditions, for a limited timeframe," and on the condition they be destroyed soon after. He decided more than 2,000 pages of past agendas archived in the PMO would not be readily available to the clerk on a continuing basis - a reality that also puts them beyond the reach of an access request.

Kelen also ruled:

-Almost 400 pages of the prime minister's agendas held by the RCMP are subject to the access law - except for passages naming private individuals or mentioning Chretien's private life;

-Collenette's agendas are not accessible through the law; and

-Some, but not all, records related to the defence meetings fall under the access law.

Kelen noted he had no right to decide whether documents such as the prime minister's agendas should be accessible to the public.

"The court does not legislate or change the law," he wrote. "If Parliament wants the PM's agendas open to the public, Parliament must amend the Access Act in such a way as to make this possible."

Stephen Harper's government told the court in May that opening the offices of cabinet ministers to scrutiny under freedom-of-information legislation could compromise sensitive material that should stay private.

It was a flip-flop for the Conservatives, who railed about Liberal secrecy in opposition and promised to overhaul the access law to fix the problem.

But Justice Department lawyers echoed the position previously argued by the Liberals - that cabinet ministers aren't technically part of the departments they lead, and therefore are not subject to the access law.

Information Commissioner Robert Marleau took the opposite position.

Daniel Brunet, a lawyer for the commissioner, said Thursday his office was reviewing the judgment and there had been no decision about whether to appeal.