One less procedural tool available to challenge federal access to information decisions

Federal agencies often receive access to information requests under the Access to Information Act (ATIA) that involve confidential third-party information, and these agencies must decide whether to disclose the information. Under section 44 of the ATIA, an affected third party can challenge those disclosure decisions in the Federal Court.

In the recent decision in Canada (Minister of Health) v. Preventous Collaborative Health, 2022 FCA 153, the Federal Court of Appeal considered whether a third-party challenger has a right to access the agency’s internal record, as they typically would in a judicial review. The Court of Appeal held that the answer was no. The Court concluded that an application under section 44 of the ATIA is “not a judicial review” and must “be heard and determined as a new proceeding”. Thus, to persuade the Federal Court that the information should be withheld, challengers must build and rely on a fresh evidentiary record.

What you need to know

• Third-party challengers may not access agency record. The Court held that Rule 317 of the Federal Courts Rules, which requires a decision-maker on a federal judicial review to provide its record of the decision under review, does not apply to section 44 applications under the ATIA. This is because section 44 applications are “a fresh review of the matter”by the Federal Court, not judicial reviews.
• New arguments and evidence are required. When challenging a federal agency’s decision to disclose third-party information, the third party must file fresh supporting evidence explaining why the information ought to be withheld. The parties are not limited to the arguments they made to the agency at first instance, and the Federal Court will make its own findings of fact and reach its own decision about whether the information should be disclosed to the requestor.
• Third parties can use all other procedural tools. Although third parties may not receive the record from the federal agency directly under Rule 317, they can still use the Federal Court’s procedural rules to help build their record. For example, they can file affidavits, conduct cross-examinations, and bring motions seeking the production of evidence that is necessary to the application.

Why the decision matters

The Federal Court of Appeal’s decision upends any notion that a third-party challenge to a federal disclosure decision under section 44 is a judicial review. Whereas a judicial review focuses on the decision being challenged, applications under section 44 do not concern what a federal agency “did or did not do, or should do or should have done”. The federal agency in a section 44 application is owed no deference; indeed, their decision is largely irrelevant to the court’s consideration.

This means that third parties have two opportunities to resist the disclosure of their information—once, before the agency, and again, before the Federal Court if they choose to commence a review proceeding. To obtain the record that was before or considered by the agency at the Federal Court stage, third parties must harness the Federal Court’s other procedural tools. The Federal Court has broad powers to order parties to produce evidence necessary for the proceeding to be meaningfully heard. At an early stage in the application, third parties should consider whether a motion for production may help the court understand why the information at issue should be withheld.

While a record of decision from an agency may sometimes help to understand the agency’s decision, the Federal Court of Appeal has reminded third parties that the focus in a section 44 application is on the information itself, not the decision below. There are many ways for third parties to marshal the necessary evidence to put forward the case that their information should be withheld.