Tories do turnabout, go to court to block access to ministerial offices

The argument is a sharp turnaround for the federal Conservatives, who complained bitterly in opposition about Liberal secrecy and vowed to reform the Access to Information Act to fix the problem.

Instead, in four days of court hearings this week, Justice Department lawyers have echoed the position previously advanced by the Liberals - that cabinet ministers aren't technically part of the departments they head, and thus are not subject to the access law.

Information Commissioner Robert Marleau maintains exactly the opposite and is asking Justice Michael Kelen to resolve the issue once and for all.

"The chief executive officer of the department is the minister," lawyer Raynold Langlois argued Thursday on behalf of the information commissioner.

"And if the minister is part of the department, the staff under his control are also part of the department."

Government lawyer Christopher Rupar countered that ministers routinely blend political and managerial duties, and that Parliament never intended to put the same burden of disclosure on them that it put on department bureaucrats.

"The minister has his private office where a wide variety of political decisions are discussed," said Rupar. "It's a mixing bag."

He maintained that, if cabinet offices are subject to disclosure under the access law, there would be nothing to stop someone from filing a request for all contacts between the minister and his or her political party headquarters.

"Undoubtedly, there would be matters of strategy, matters of internal political dealings," said Rupar. "This shows the rationale for why the minister's office is not covered by the act."

At issue are four access requests that serve to illustrate the dispute - including a celebrated one in which former Liberal prime minister Jean Chretien was targeted by the Canadian Alliance, a political ancestor of the present-day Conservatives.

Laurie Throness, then an Alliance researcher and now an adviser to Health Minister Tony Clement, sparked a storm by seeking the daily agendas showing all meetings and other activities by Chretien.

The other cases include:

-An effort to obtain the same agendas from the RCMP, which received copies for security reasons.

-A request for the daily agendas of David Collenette when he was Liberal transport minister.

-A request, filed by a journalist, for notes from a meeting involving then-defence minister Art Eggleton, his deputy minister and the chief of defence staff.

All the applications were refused, although the reasons varied.

The offices of Chretien and Collenette simply maintained they weren't covered by the access law, while the RCMP withheld the material on grounds that it was personal information and thus exempt from disclosure.

Eggleton's office said that, even though he was meeting with non-political people, the notes were taken by a ministerial staffer and thus should remain secret.

The information commissioner acknowledges that it may be justified to withhold personal or partisan political material, but objects to the claim that everything held in cabinet offices is automatically out of bounds.

The issue has been a contentious one for years. Former information commissioner John Grace urged Parliament as long ago as 1994 to clarify the law and remove any doubt that ministers are covered.

John Gomery, head of the inquiry into the sponsorship scandal that rocked the Chretien government, made a similar recommendation in 2006.

The Conservatives promised, in their last election platform, to bring in amendments making it clear that cabinet offices come under the law, but they have failed to deliver on the pledge.

The Federal Court hearing is expected to run through Friday and possibly into next week. It likely will be months before Kelen renders a judgment.