Introduction
This decision concerns the obligation of Indigenous Services Canada (“ISC”), a federal agency that holds band trust funds pursuant to sections 61 to 69 of the Indian Act, to disclose council resolutions that authorized payments from a band’s trust account to members of a First Nation’s council for salaries and expenses.
Background
The applicant, a member and former employee of Frog Lake First Nation, requested the records from ISC pursuant to the Access to Information Act (“ATIA”) and the First Nations Financial Transparency Act.
The First Nations Financial Transparency Act is a 2013 law that requires all First Nations (defined as “bands” under the Indian Act) to:
- prepare annual audited financial statements and a schedule listing remuneration paid to members of council;
- provide those records to any member upon request; and
- publish those documents on its website in a manner accessible to the public for at least 10 years.
The First Nations Financial Transparency Act also requires the Minister to publish those documents on the ISC website and permits any person to apply to a court for an order requiring the First Nation to comply with the publication of those documents. It also grants the Minister powers of enforcement.
Frog Lake First Nation had not published a schedule listing remuneration paid to members of Council for the fiscal years of 2019, 2020, or 2021. The records sought in this case contained personal information regarding the members of the Council of the First Nation, including their names, titles, signatures, and the amount of compensation to be paid to them.
ISC refused the request for disclosure pursuant to subsection 19(1) and paragraph 20(1)(b) of the ATIA. Subsection 19(1) requires federal institutions to refuse disclosure of any record that contains personal information, and paragraph 20(1)(b) requires federal institutions to refuse disclosure of any record containing financial information that is confidential information supplied to a government institution by a third party and is treated consistently in a confidential manner by the third party.
The applicant applied for judicial review of the decision. The issue was whether ISC correctly applied the exemptions in subsection 19(1) and paragraph 20(1)(b) of the ATIA and the reasonableness of its failure to consider its discretionary power under subsection 19(2) of the ATIA, which allows a federal institution to disclose publicly available information.
Analysis
The Federal Court allowed the application and remitted the matter to ISC for redetermination on whether specific amounts paid to Council members could be disclosed.
The court held that the applicable exemptions under the ATIA were not sufficient to justify a blanket refusal of the requested records, and that ISC erred by failing to consider whether to exercise its discretion to release the information. Paragraph 19(2)(b) of the ATIA provides that records containing personal information may be disclosed if information they contain is publicly available and not confidential, and, the court held, the ATIA and First Nations Financial Transparency Act indicated that compensation received by Council members was intended to be publicly available and not confidential.
This case summary provides our general comments on the case discussed and should not be relied on as legal advice.
See CanLII for the Reasons for Judgment.
