Case information
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33299
Information Commissioner of Canada v. Prime Minister of Canada
(Federal) (Civil) (By Leave)
(Sealing order)
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
| Date | Proceeding | Filed By (if applicable) |
|---|---|---|
| 2011-06-13 | Record returned to the Registrar of the Court of Appeal | |
| 2011-05-19 | Appeal closed | |
| 2011-05-16 | Formal judgment sent to the registrar of the court of appeal and all parties | |
| 2011-05-16 | Judgment on appeal and notice of deposit of judgment sent to all parties | |
| 2011-05-13 |
Judgment on the appeal rendered, CJ Bi LeB De F Abe Cha Ro Cro, The appeal from the judgment of the Federal Court of Appeal, Number A-379-08, 2009 FCA 175, dated May 27, 2009, heard on October 7, 2010, is dismissed with costs. Dismissed, with costs |
|
| 2011-01-31 | Correspondence received from, Marlys Edwardh dated January 26, 2011. Re: Marlys Edwardh and Jessica Orkin are now with Sack Goldblatt Mitchell, LLP | Information Commissioner of Canada |
| 2010-12-20 | Media lock-up request accepted | |
| 2010-12-10 | Media lock-up consent form received from, Consent to both lock-up | Prime Minister of Canada |
| 2010-12-07 | Media lock-up consent form received from, Consent to both lock-up | Information Commissioner of Canada |
| 2010-11-29 | Media lock-up letter, consent form and undertaking sample sent to all parties | |
| 2010-11-17 | Media lock-up requested or proposed | |
| 2010-10-26 | Transcript received, (78 pages) | |
| 2010-10-07 | Judgment reserved OR rendered with reasons to follow | |
| 2010-10-07 | Respondent's condensed book, Submitted in Court - Joint with 33296-33297-33300 (14 copies) | Prime Minister of Canada |
| 2010-10-07 | Appellant's condensed book, Submitted in Court - Joint with 33296-33297-33300 (14 copies) | Information Commissioner of Canada |
| 2010-10-07 | General proceeding, Questionnaire following the hearing concerning the sealing order | Information Commissioner of Canada |
| 2010-10-07 | Acknowledgement and consent for video taping of proceedings, From all parties | |
| 2010-10-07 |
Hearing of the appeal, 2010-10-07, CJ Bi LeB De F Abe Cha Ro Cro Judgment reserved |
|
| 2010-09-30 | Appellant's book of authorities, Reply book of authorities (Joint with 33296, 33297, 33300), Completed on: 2010-09-30 | Information Commissioner of Canada |
| 2010-09-28 | Reply factum on appeal, Joint with 33296-33297-33300, Completed on: 2010-09-28 | Information Commissioner of Canada |
| 2010-09-23 | Notice of appearance, Christopher Rupar, Jeffrey Johnston and Mandy Moore will be present at the hearing. | Prime Minister of Canada |
| 2010-09-22 | Notice of appearance, Ryder Gilliland will be present at the hearing. | Canadian Civil Liberties Association |
| 2010-09-22 | Notice of appearance, Paul Schabas will be present at the hearing. | Canadian Newspaper Association |
| 2010-09-22 | Notice of appearance, Marlys Edwardh, Jessica Orkin, Laurence Kearley and Diane Therrien will be present at the hearing. | Information Commissioner of Canada |
| 2010-09-22 | Order on motion to file a reply factum on appeal | |
| 2010-09-22 |
Decision on the motion to file a reply factum on appeal, this is a joint order for the following files: 33296-33297-33299-33300, Cha, UPON A MOTION by the Appellant pursuant to the provisions of Rules 3(1) and 47 of the Rules of the Supreme Court of Canada for an Order permitting the Appellant to serve and file a reply factum: 1. IT IS HEREBY ORDERED that the Appellant may serve and file, within five business days of the date of this Order, a reply factum of no more than six pages concerning the impact of this Court’s ruling in Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23 on the issues raised in these appeals, as well as a reply book of authorities. Granted |
|
| 2010-09-22 | Submission of motion to file a reply factum on appeal, Cha | |
| 2010-09-14 | Reply to motion to file a reply factum on appeal, from Marlys Edwardh dated Sept. 14/10 (joint with 33296-297-300), Completed on: 2010-09-14 | Information Commissioner of Canada |
| 2010-09-10 | Response to motion to file a reply factum on appeal, from Christopher Rupar dated Sept. 10/10 (joint with 33296-297-300), Completed on: 2010-09-10 | Prime Minister of Canada |
| 2010-09-03 | Motion to file a reply factum on appeal, of no more than 6 pages as well as a reply book of authorities within 5 business days of the Court's order (bookform) (joint with 33296-297-300), Completed on: 2010-09-03 | Information Commissioner of Canada |
| 2010-08-18 |
Order by, this is a joint order for the following files: 33296-33297-33299-33300, CJ, IT IS ORDERED THAT: The time for oral argument by the appellant and respondents in these appeals shall be set as follows: 1. The appellant shall have in total one (1) hour and thirty (30) minutes for oral argument and five (5) minutes in reply; 2. The respondents shall have in total one (1) hour and thirty (30) minutes for oral argument. IT IS FURTHER ORDERED THAT: The appellant is granted leave for three (3) counsel to present oral argument at the hearing of these appeals. Granted |
|
| 2010-08-05 |
Correspondence received from, Mr. Kearley rec'd by e-mail re: counsel for the appellant will not be referring to the contents of any confidential material during the hearing. |
Information Commissioner of Canada |
| 2010-08-03 |
Order by, this is a joint order for the following files: 33296-33297-33299-33300, Abe, FURTHER TO THE ORDER dated June 7, 2010, granting leave to intervene to the Canadian Civil Liberties Association and the Canadian Newspaper Association, Ad IDEM/Canadian Media Lawyers Association and Canadian Association of Journalists; IT IS HEREBY FURTHER ORDERED THAT the said interveners are each granted permission to present oral argument not exceeding a total of ten (10) minutes at the hearing of these appeals. Granted |
|
| 2010-07-30 | Intervener's book of authorities, Joint with 33300-33296-33297, service, cd and form rec'd Aug. 4/10, Completed on: 2010-08-04 | Canadian Newspaper Association |
| 2010-07-30 | Intervener's factum, Joint with 33300-33296-33297, service, cd and form rec'd Aug. 4/10, Completed on: 2010-08-04 | Canadian Newspaper Association |
| 2010-07-30 | Intervener's book of authorities, Joint with 33300-33296-33297, service, cd and form rec'd Aug. 4/10, Completed on: 2010-08-04 | Canadian Civil Liberties Association |
| 2010-07-30 | Intervener's factum, Joint with 33300-33296-33297, service, cd and form rec'd Aug. 4/10, Completed on: 2010-08-04 | Canadian Civil Liberties Association |
| 2010-07-29 | Correspondence received from, Jeffrey G. Johnston rec'd by fax re: object to more time and does not object to 3 counsel presenting oral argument ( joint with 33300-33296-33297) (cc. to all parties) | Prime Minister of Canada |
| 2010-07-28 | Correspondence received from, Jessica Orkin rec'd by fax re: request more time for oral arguments at the hearing (cc. to all parties) (joint with 33300-33296-33297) - motion requested | Information Commissioner of Canada |
| 2010-07-05 |
Correspondence received from, Christopher Rupar dated July 5/10 with corrections to the respondents' factum (original rec'd July 6/10) |
Prime Minister of Canada |
| 2010-07-05 | Notice of hearing sent to parties | |
| 2010-07-05 |
Appeal hearing scheduled, 2010-10-07, (start time 9:00 a.m.) Judgment reserved |
|
| 2010-06-30 | Respondent's book of authorities, joint with 33300, 33297, 33296 (2 vols) (CD rec'd June 30/10), Completed on: 2010-06-30 | Prime Minister of Canada |
| 2010-06-25 |
Respondent's factum, Joint with 33300, 33296 and 33297 - CD rec'd June 30/10 - new CD re corrections through letter of July 5/10 rec'd Jul. 6/10 , Completed on: 2010-07-06 |
Prime Minister of Canada |
| 2010-06-21 | Appeal perfected for hearing | |
| 2010-06-17 | Order on motion to extend time | |
| 2010-06-17 |
Decision on motion to extend time, to serve and file the respondents' factum to June 25/10 and to serve and file the Book of Authorities to July 2/10, DeRg Granted |
|
| 2010-06-17 | Submission of motion to extend time, DeRg | |
| 2010-06-16 | Response to motion to extend time, (included in motion), Completed on: 2010-06-16 | Information Commissioner of Canada |
| 2010-06-16 | Motion to extend time, to serve and file a joint Respondents' factum to June 25, 2010, and to serve and file a joint Book of Authorities to July 2, 2010, Completed on: 2010-06-16 | Prime Minister of Canada |
| 2010-06-15 | Correspondence received from, (by fax) J. Orkin, dated June 15/10; may seek to file a reply factum concerning the decision in 32172 (joint with 33296-7-33300) | Information Commissioner of Canada |
| 2010-06-15 | Correspondence received from, (Letter Form), Ms. Moore (joint with 33300, 33297 and 33296), dated June 15-10, re: will be filing a motion to extend time to file the response to June 25-10. | Prime Minister of Canada |
| 2010-06-07 | Reply to the motion for leave to intervene, (bookform), Completed on: 2010-06-07 | Canadian Journalists for Free Expression |
| 2010-06-07 | Letter sent to Intervener(s) | |
| 2010-06-07 | Order on motion for leave to intervene, (BY ABELLA J.) | |
| 2010-06-07 |
Decision on the motion for leave to intervene, Abe, The motion for leave to intervene by the Canadian Civil Liberties Association is granted and the said intervener shall be entitled to serve and file a single factum not to exceed 10 pages in length in these appeals. The motion for leave to intervene by the Canadian Newspaper Association, Ad IDEM/Canadian Media Lawyers Association and Canadian Association of Journalists is granted and the said group of intervener shall be entitled to serve and file a single factum not to exceed 10 pages in length in these appeals. The motion for leave to intervene by the Canadian Journalists for Free Expression is dismissed. The requests to present oral argument are deferred to a date following receipt and consideration of the written arguments of the parties and the interveners. The interveners shall not be entitled to raise new issues or to adduce further evidence or otherwise to supplement the record of the parties. Pursuant to Rule 59(1)(a) of the Rules of the Supreme Court of Canada, the interveners shall pay to the appellant and respondents any additional disbursements occasioned to the appellant and respondents by their intervention. Granted |
|
| 2010-06-04 | Reply to the motion for leave to intervene, from Ryder Gilliland dated June 4/10 (joint with 33296-297-300), Completed on: 2010-06-04 | Canadian Civil Liberties Association |
| 2010-06-03 | Submission of motion for leave to intervene, Abe | |
| 2010-05-31 | Response to the motion for leave to intervene, from Christopher Rupar dated May 31/10 (by all interveners) (joint with 33296-297-300), Completed on: 2010-05-31 | Prime Minister of Canada |
| 2010-05-26 |
Correspondence received from, Laurence Kearley and Marlys Edwardh dated May 26/10 re: contact information (joint with 33296-297-300) |
Information Commissioner of Canada |
| 2010-05-25 |
Response to the motion for leave to intervene, (Letter Form), from Jessica Orkin dated May 25/10 (by all interveners) (joint with 33296-297-300) , Completed on: 2010-05-25 |
Information Commissioner of Canada |
| 2010-05-25 | Motion for leave to intervene, with memorandum of argument (bookform) (joint with 33296-297-300), Completed on: 2010-05-25 | Canadian Journalists for Free Expression |
| 2010-05-21 | Motion for leave to intervene, (bookform) (joint with 33296-297-300), Completed on: 2010-05-25 | Canadian Newspaper Association |
| 2010-05-21 | Motion for leave to intervene, (bookform) (joint with 33296-297-300), Completed on: 2010-05-25 | Canadian Civil Liberties Association |
| 2010-05-20 | Correspondence received from, Laurence Kearley dated May 20/10 providing the Court with clarifications about the appellant's confidential record (joint with 33296-297-300) | Information Commissioner of Canada |
| 2010-05-05 | Correspondence received from, Jessica Orkin dated May 5/10 re: confidential record and CD-Rom (joint with 33296-297-300) | Information Commissioner of Canada |
| 2010-05-03 | Appellant's book of authorities, Joint with 33296-33297-33300 (11 volumes + 1 General Table of Contents), Completed on: 2010-05-03 | Information Commissioner of Canada |
| 2010-04-26 | Appellant's record, SEALED - Joint with 33296-33297-33300 (17 volumes) CONFIDENTIAL/SEALED VOLUMES - 4, 5, 6, 7,10, 12, 13, 15, 16. Exhibits numbered E-3 to E-32 were filed only in elctronic format., Completed on: 2010-04-26 | Information Commissioner of Canada |
| 2010-04-26 | Appellant's factum, Joint with 33296, 33297, 33300, Completed on: 2010-04-26 | Information Commissioner of Canada |
| 2010-04-08 | Order on motion to extend time | |
| 2010-04-08 |
Decision on motion to extend time, to serve and file a) the appellant's factum and record to Apr. 26/10;b) the appellant's book of authorities to May 3/10; c) and the respondents' book of authorities to June 28/10, Reg Granted |
|
| 2010-04-07 | Submission of motion to extend time, Reg | |
| 2010-04-01 | Response to motion to extend time, (included in motion record), Completed on: 2010-04-01 | Prime Minister of Canada |
| 2010-04-01 | Motion to extend time, the filing deadlines to serve and file the appellant's factum and record to Apr. 26/10, the appellant's book of authorities to May 3/10 and the respondents' book of authorities to June 28/10 (bookform) (joint with 33296-297-300), Completed on: 2010-04-08 | Information Commissioner of Canada |
| 2010-03-05 | Order on miscellaneous motion | |
| 2010-03-05 |
Decision on miscellaneous motion, DeRg, UPON A MOTION by the Appellant for an Order granting certain relief concerning the form of the materials of the Appellant and Respondent in respect of the above-noted appeals; AND UPON THE CONSENT of the Respondent in respect of each of the above-noted appeals: 1. IT IS HEREBY ORDERED that the Appellant may file a single joint factum not exceeding 100 pages and a single joint set of books of authorities in respect of the four appeals in Court Files Nos. 33296, 33297, 33299 and 33300. 2. IT IS FURTHER ORDERED that the Respondents may file a single joint factum not exceeding 100 pages and a single joint set of books of authorities in respect of the four appeals in Court Files Nos. 33296, 33297, 33299 and 33300. 3. IT IS FURTHER ORDERED that the Appellant and Respondent may each file a single joint record in respect of the four appeals in Court File Nos. 33296, 33297, 33299 and 33300. 4. IT IS FURTHER ORDERED that the Appellant may print the single joint record in respect of the four appeals in Court File Nos. 33296, 33297, 33299 and 33300 on both sides of each page. 5. IT IS FURTHER ORDERED, pursuant to Rule 41 of the Rules of the Supreme Court of Canada, that the Appellant may dispense with the printing of the following documents forming part of the records in Court File Nos. 33296, 33297, 33299 and 33300, and may instead file these documents in electronic form only: (a) In Court File No. 33300, Confidential Exhibit “I” to the Confidential Affidavit of Dan O’Donnell; (b) In Court File No. 33299, Confidential Exhibit “I” to the Confidential Affidavit of Viviane Lanthier; (c) In Court File No. 33299, Confidential Exhibit “II” to the Confidential Affidavit of Viviane Lanthier; (d) In Court File No. 33299, Confidential Exhibit “III” to the Confidential Affidavit of Viviane Lanthier; (e) In Court File No. 33299, Confidential Exhibit “IV” to the Confidential Affidavit of Viviane Lanthier; (f) In Court File No. 33300, Exhibit “6” to the Affidavit of Dan O’Donnell; (g) In Court File No. 33300, Exhibit “8” to the Affidavit of Dan O’Donnell; (h) In Court File No. 33299, Confidential Exhibit “F-2” to the Confidential Affidavit of Viviane Lanthier; (i) In Court File No. 33299, Confidential Exhibit “F-4” to the Confidential Affidavit of Viviane Lanthier; (j) In Court File No. 33296, Confidential Exhibit “A” to the Confidential Affidavit of Viviane Lanthier; (k) In Court File No. 33296, Confidential Exhibit “B” to the Confidential Affidavit of Viviane Lanthier; (l) In Court File No. 33296, Confidential Exhibit “E” to the Confidential Affidavit of Viviane Lanthier; and (m) In Court File No. 33297, Confidential Exhibit “G” to the Confidential Affidavit of Dan O’Donnell. Granted |
|
| 2010-03-05 | Submission of miscellaneous motion, DeRg | |
| 2010-02-16 | Response to miscellaneous motion, Completed on: 2010-02-16 | Prime Minister of Canada |
| 2010-02-16 | Notice of miscellaneous motion, granting in the 4 appeals 33296-297-299 & 300 leave to each the appellant and respondents to file a single joint factum of 100 pages, a single joint books of authorities and a single joint record, to dispense with the printing etc. (bookform), Completed on: 2010-02-16 | Information Commissioner of Canada |
| 2010-01-28 | Appeal court record, 5 boxes (joint with 33296, 33297 and 33300) | |
| 2010-01-15 | Notice of appeal, (electronic filing form requested - rec'd Jan. 20/10), Completed on: 2010-01-28 | Information Commissioner of Canada |
| 2010-01-05 | Letter advising the parties of tentative hearing date and filing deadlines (Leave granted), (joint with 33296, 33297 and 33300) | |
| 2009-12-18 | Copy of formal judgment sent to Registrar of the Court of Appeal and all parties | |
| 2009-12-18 | Judgment on leave sent to the parties | |
| 2009-12-17 |
Judgment of the Court on the application for leave to appeal, The application for leave to appeal from the judgments of the Federal Court of Appeal, Number A-379-08, 2009 FCA 175, dated May 27 2009, and 2009 FCA 181, dated May 29, 2009, is granted with costs in the cause. Granted, with costs in the cause |
|
| 2009-10-26 | All materials on application for leave submitted to the Judges, Bi F Cha | |
| 2009-10-05 | Applicant's reply to respondent's argument, Joint with 33300, 33296 & 33297, Completed on: 2009-10-05 | Information Commissioner of Canada |
| 2009-09-23 | Respondent's response on the application for leave to appeal, Joint with 33300, 33297 & 33296, Completed on: 2009-09-23 | Prime Minister of Canada |
| 2009-08-31 | Letter acknowledging receipt of a complete application for leave to appeal | |
| 2009-08-26 | Application for leave to appeal, see main file 33300, Completed on: 2009-08-26 | Information Commissioner of Canada |
Parties
Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.
Main parties
| Name | Role | Status |
|---|---|---|
| Information Commissioner of Canada | Appellant | Active |
v.
| Name | Role | Status |
|---|---|---|
| Prime Minister of Canada | Respondent | Active |
Other parties
| Name | Role | Status |
|---|---|---|
| Canadian Civil Liberties Association | Intervener | Active |
| Canadian Newspaper Association | Intervener | Active |
| Ad IDEM/Canadian Media Lawyers Association and Canadian Association of Journalists | Intervener | Active |
Counsel
Party: Information Commissioner of Canada
Counsel
Diane Therrien
Marlys A. Edwardh
Jessica R. Orkin
112 Kent Street Tower B, 7th Floor
Ottawa, Ontario
K1A 1H3
Telephone: (613) 943-2577
FAX: (613) 947-5252
Party: Prime Minister of Canada
Counsel
Mandy E. Moore
Jeffrey Johnston
Bank of Canada Building - East Tower
234 Wellington Street, Room 1212
Ottawa, Ontario
K1A 0H8
Telephone: (613) 941-2351
FAX: (613) 954-1920
Email: christopher.rupar@justice.gc.ca
Party: Canadian Civil Liberties Association
Counsel
Commerce Court West
2800 - 199 Bay St.
Toronto, Ontario
M5L 1A9
Telephone: (416) 863-5849
FAX: (416) 863-2653
Email: ryder.gilliland@blakes.com
Agent
45 O'Connor St.
20th Floor
Ottawa, Ontario
K1P 1A4
Telephone: (613) 788-2200
FAX: (613) 788-2247
Email: nancy.brooks@blakes.com
Party: Canadian Newspaper Association
Counsel
PO Box 25
Commerce Court West
Toronto, Ontario
M5L 1A9
Telephone: (416) 863-4274
FAX: (416) 863-2653
Email: paul.schabas@blakes.com
Agent
45 O'Connor St.
20th Floor
Ottawa, Ontario
K1P 1A4
Telephone: (613) 788-2200
FAX: (613) 788-2247
Email: nancy.brooks@blakes.com
Party: Ad IDEM/Canadian Media Lawyers Association and Canadian Association of Journalists
Counsel
PO Box 25
Commerce Court West
Toronto, Ontario
M5L 1A9
Telephone: (416) 863-4274
FAX: (416) 863-2653
Email: paul.schabas@blakes.com
Agent
45 O'Connor St.
20th Floor
Ottawa, Ontario
K1P 1A4
Telephone: (613) 788-2200
FAX: (613) 788-2247
Email: nancy.brooks@blakes.com
Summary
Keywords
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Summary
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.
Legislation - Interpretation - How should a contextual and purposive analysis of the Access to Information Act, R.S.C. 1985, c. A-1 (“Act”), proceed in respect of the roles of ministers and their offices and departments? - Whether the Federal Court of Appeal erred in law in basing its interpretation of the Act exclusively upon an alleged “well understood convention” that the offices of ministers are institutions of government that are separate from the departments over which the ministers preside - Whether the Federal Court of Appeal erred in law in concluding that the ministers who preside over and head departments, and their departmental offices, are not part of the “government institution” for the purposes of the Act - Whether the Federal Court of Appeal erred in law in adopting the test for “control” of records articulated by the Federal Court - What is the correct test for determining whether records are “under the control of a government institution” for the purposes of s. 4 of the Act? - Whether the Federal Court of Appeal erred in law in concluding that ministers, as heads of government institutions, are not also “officers” of those institutions for the purposes of the definition of “personal information” within the Privacy Act, R.S. 1985, c. P-21, and the Act.
Privy Council Office (“PCO”) received six access requests under the Act for the daily agendas of former Prime Minister, the Right Honourable Jean Chrétien (the “PM”), covering a period of between January 1994 and June 25, 1999. Following a complaint and an investigation by the Appellant, 2,006 pages were found responsive to the request. Almost all were located in the Prime Minister’s Office (“PMO”), while four were in the office of the Executive Assistant to the Clerk of the PCO. Copies of the agendas had at times been shared with senior officials employed within PMO, faxed to the Clerk of the PCO, and portions made available to the RCMP. The Appellant found the complaint well- founded and recommended that the records be released, subject to portions validly withheld under the Act. PCO did not follow the recommendation, its position being that, to the extent that any copies had been under the control of a government institution, they were subject to the exemptions and exclusions in s. 17 (safety of individuals); s. 19(1) (personal information); and s. 69 (Cabinet confidences) of the Act. PCO argued that severance under s. 25 was not feasible. With the requester’s consent, the Appellant commenced an application for judicial review of that decision.
Lower court rulings
Federal Court of Canada, Trial Division
T-1209-05
Application for judicial review allowed in small part: pages of the former PM’s agendas archived in the PMO held not subject to access; pages of agendas located in the PCO held subject to access except for portions related to the private life of the PM
Federal Court of Appeal
2009 FCA 175, A-379-08
dismissed with costs
Federal Court of Appeal
2009 FCA 181, A-379-08
cross-appeal allowed without costs
Memorandums of argument on application for leave to appeal
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Factums on appeal
The factums of the appellant, the respondent and the intervener will be posted here at least 2 weeks before the hearing unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of factums by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.
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