All About Information

In a judgement released today, the Ontario Court of Appeal interpreted the section 2(3) application provision of the Municipal Freedom of Information and Protection of Privacy Act and held that the City of Toronto Economic Development Corporation is deemed to be part of the City of Toronto for the purposes of the Act.

TEDCO is an OBCA corporation that is wholly owned by the City.  The City appoints all TEDCO directors, who in turn elect or appoint all TEDCO officers pursuant to a by-law.  The Court held that all of TEDCO’s officers are “appointed or chosen by or under the authority” of the City as contemplated by section 2(3).  It based its decision on the ordinary meaning of the word “authority,” the purpose of access to information legislation and the non-technical character of the language used in section 2(3) - marked by the phrase “appointed or chosen.”

While the judgement is confined in its significance, the Court’s reasoning on non-technical language supporting a non-technical interpretation of other proximate language seems worth a note to self.

City of Toronto Economic Development Corporation v. Information and Privacy Commissioner/Ontario, 2008 ONCA 366.

On February 14th, the Information and Privacy Commissioner/Ontario held that Queen’s University could deny access to records that would reveal the identities of three female complainants whose harassment complaints led the University to issue a trespass notice to an individual who was not a member of the university community. It noted that the requester had engaged in persistent and harassing behaviour towards the complainants, held there was sufficient evidence to conclude that the requester’s motives were not benevolent and applied the exemptions in sections 14(1)(e) and 20(1)(e) of FIPPA. It further held that disclosure would be presumed to be an unjustified invasion of privacy under 21(3)(b) (which protects information compiled as part of an investigation into a possible violation of law) and that that “absurd result principle” did not justify giving the requester access to e-mails he had sent the University in the course of its investigation.

Queen’s University (Re), 2008 CanLII 5953 (ON I.P.C.).

On January 31st, the IPC ordered McMaster University to release parts severed from its president’s renewal employment contract and claimed to be exempt based on section 21 (unjustified invasion of privacy).

Order PO-2641 (31 January 2008, O.I.P.C.).

On January 29th, the Divisional Court issued a FIPPA judicial review decision that dealt with multiple issues.

• The Court held that records related to the Crown’s defence of a legal action based on actions taken by its employees were not excluded by the employment-related records exclusions.  It said, “Employment-related matters are separate and distinct from matters related to employees’ actions.”
• The Court held that a letter from plaintiffs’ counsel to the Crown sent in the course of litigation was not “prepared for Crown counsel for use in litigation” and exempt under Branch 2 of section 19 (the so-called “statutory litigation privilege”).  
• The Court held that the same letter, which included information provided by the Ministry in the course of litigation, was not exempt based on the implied undertaking rule.  It held the implied undertaking rule could not be read into section 19.
• The Court questioned whether Branch 2 of section 19 protects any document copied simply copied for inclusion into the Crown brief, but did not answer its question because the records in question had qualified for the exemption based on the more rigid common law test from Nickmar:  the relevant records were compiled by research or the exercise of skill and knowledge on the part of the Crown.
• The Court held that the IPC did not err by ordering disclosure of information with personal identifiers severed without considering whether information available to the press would cause individuals to be identifiable.  The Court suggested that the Ministry had a burden to adduce evidence of the facts within the press’ knowledge given that it was not otherwise obvious how individuals could be identified from the information disclosed. 
• The Court ordered the IPC to reconsider the requester’s claim to the public interest override as applied to the records that were held to be exempt under section 19.  At the time, the IPC held that there was a compelling public interest in the disclosure of these records, but did not balance this public interest against the interest protected by 19 because it made its decision before the Ontario Court of Appeal read section 19 into to the override clause. 

On January 22, the British Columbia OIPC released an investigation report dealing with a complaint brought by eight environmental organizations which alleged three ministries were suffering from systemic flaws in their processing of FOI requests. Commissioner Loukedelis held that further analysis would be required to make a firm finding, but that there was some basis for an allegation of a “systemic problem” at the MOE. This was enough to make the MOE agree to a remedial plan with six core tasks.

Investigation Report FO8-01, [2008] B.C.I.P.D. No. 5 (QL).

On November 19th, a Kentucky court judge ordered the state to disclose personal e-mails exchanged between a requestor’s wife and another former state employee, requested because he suspected the two individuals were having an affair.

The request was for all “Personal non-work related emails between Bobbie Malmer and David Moss dated between 11-01-05 thru 6-01-06.”

In weighing the privacy interest of the affected individuals against the interest in open government, the Court stressed that the individuals had a reduced expectation of privacy because the state had reserved a right of inspection in its acceptable use policy, because it had prohibited personal use on its computer system and because the extent of a state employee’s personal use is itself a matter of public interest. It said:

The privacy exception does not protect public employees from the disclosure of improper or embarrassing personal communications that were made during working hours through the use of the state electronic mail system. See KRS 61.871. It is not an “unwarranted invasion of personal privacy” to disclose such non-work related communications made during working hours on the state computer system. This principle applies with even greater force when the state employees have been informed that all information conveyed through the state email system is the property of the state, and is subject to public oversight and control. In these circumstances, no privacy interest can be legitimately claimed.

Moreover, the Court agrees with the observation of Justice Brandeis that “Sunlight is said to be the best of disinfectants.” The best deterrent for improper use of the state email system for nonwork related activity is to apply the plain language of the Open Records Act to ensure the enforcement of the principle that public employees are accountable for their use of public time and public resources. The public has a right to know the contents of non-work related emails transmitted through the state email system by state employees being paid with tax dollars during working hours. If the subject matter of the email is truly private, it should not be communicated through the state email system.

Personal e-mails sent and received on Ontario public sector e-mail systems are presumptively subject to public access, but will often fall within our own “unjustified invasion of personal privacy” exemption. Although Kentucky’s open records regime appears to have a different emphasis than our own, this is an issue that is clearly relevant here at home, and a similar balancing test will often apply.

An article from the Globe and Mail says the state will appeal.

Justice and Public Safety Cabinet v. Malmer (19 November 2007, Ky.).

The Office of the Information and Privacy Commissioner/Ontario has released its first two orders interpreting the new “compassionate reasons” exception in section 14(4)(c) of MFIPPA and section 21(4)(d) of FIPPA.

In 2006, the government passed Bill 190, the Good Government Act. Schedule N of this omnibus bill created a new provision in both acts to create an exception to the mandatory “unjustified invasion of personal privacy” exemption to the right of public access. The carve out allows “close relatives” of a deceased individual to obtain personal information notwithstanding any invasion of privacy where disclosure is “desirable for compassionate reasons.”

MO-2237 - Test articulated

In MO-2237, dated October 19, Assistant Commissioner Beamish ordered a police services board to disclose records created in the course of an investigation into the death of the requestor’s daughter based on the new exception.

Mr. Beamish first held that the exception applies to the personal information of a deceased individual that is mixed with another individual’s personal information. This is significant because the investigations that are likely to produce records litigated under the exception will often include “mixed personal information.” In this case, the mixed personal information was provided by the deceased’s former roommate and was about her interaction with the deceased.

Mr. Beamish then gave meaning to the trigger language, “desirable for compassionate reasons.” He explained that the provision requires a “broad and all encompassing” analysis that involves consideration of both the surviving family member’s need for the information and the privacy interest of both the deceased and any other person whose personal information is mixed with that of the deceased.

Balancing these factors, Mr. Beamish ordered disclosure of most of the information in dispute. While it is not surprising that that deceased’s own privacy interests did not prevail against her mother’s interest (given they were not estranged), it is more significant that Mr. Beamish ordered disclosure of the roommate’s personal information, especially because it appears the information was partly about the roommate’s own health. He characterized the issue as “difficult” but after careful consideration held that the balance weighed in favour of disclosure.

MO-2245 - Limitations made clear

On November 9th, the IPC issued a second order interpreting the exception. It is significant for its rejection of two positions that weigh against disclosure.

First, the IPC made clear a head should readily accept the requestor’s expressed compassionate grounds:

Having been informed that disclosure of the videotape and photographs may be upsetting and disturbing, in my view the appellant is in the best position to determine whether disclosure is in her interests. In general, institutions may have an obligation to inform spouses and close family members of the nature of the information they have requested under section 14(4)(c); for example if it is particularly graphic or disturbing. However, having provided that advice, it does not then rest with an institution to make decisions on behalf of that grieving spouse or relative as to whether disclosure is in their best interests. A well-informed adult can make that decision on their own behalf.

Second, the IPC made clear that a head should not consider a disclosure to the requestor a disclosure to the world in considering the new exception. While this concept is generally accepted as a valid means of ensuring an individual’s right of privacy is not lessened because of the motivations or identity of a specific requestor, the IPC held that the new exception is unique in that it contemplates disclosure to a specific individual.

MO-2237 (19 October 2007, O.I.P.C.) and MO-2245 (9 November 2007, O.I.P.C.).

On October 30th, the Ontario Superior Court of Justice (Divisional Court) allowed a judicial review application of an Information and Privacy Commissioner/Ontario order to disclose a police firearms database.

Consistent with its prior jurisprudence, the IPC had held that the content of the database was not exempt from public access because it was assembled because of statutory recordkeeping requirements and not because of a specific and ongoing law enforcement “matter.” The Divisional Court held this was an error:

The plain and ordinary meaning of the word “matter” is very broad. We find that “matter” does not necessarily always have to apply to some specific on-going investigation or proceeding. The Adjudicator, in our view, erred in taking too narrow a view of the word “matter” in this particular case.

In an related application heard at the same time, the Court upheld the IPC’s finding that “law enforcement intelligence” is limited to activity in which information is collected in a covert manner to further the detection and prosecution of crime.

Ontario (Ministry of Community Safety and Correctional Services) v. Ontario (Information and Privacy Commissioner), [2007] O.J. No. 4233 (Ont. Div. Ct.) (QL).

In the first case to consider the new exclusion for research-related records in the Ontario Freedom of Information and Privacy Act, the IPC held that it has jurisdiction to order production of records claimed to be excluded and otherwise inquire into the claim. The University had resisted production of records in four requests where the research-related nature of the records was clear on the face of the requests.

Interim Order PO-2601-I, 2007 CanLII 39194 (ON I.P.C.).

On August 27th, the Federal Court of Appeal held that information provided by the Canadian Imperial Bank of Commerce to the Canadian Human Rights Commission as part of an employment equity audit was exempt from public access as “information supplied in confidence.”

The request, made under the Access to Information Act, was for a final employment equity report that primarily contained information provided by the bank to the Commission in the course of an employment equity audit. In arguing against disclosure, the bank relied heavily on section 34(1) of the Employment Equity Act, which creates a statutory privilege for all information obtained by the Commission under the Act. This provision is not listed in Schedule II to the ATIA, which lists nineteen other statutory privilege provisions. Information that is protected by a Schedule II provision is expressly exempt from public access by section 24 of the ATIA.

The Commission decided to disclose the report and the Federal Court dismissed the bank’s application for judicial review. On appeal, the bank argued that the report was not subject to public access because it was not under the Commission’s control, that the report was not subject to public access because the information it contained was privileged and, alternatively, that the record was exempt from public access under a number of specific provisions of the ATIA. The Canadian Bankers Association intervened in the appeal, expressing a broader interest in the confidentiality of bank disclosures to a number of federal regulators under similar statutory privilege provisions.

In the end, the Court dismissed the bank’s broader arguments and held the report was exempt from disclosure based on section 20(1)(b) of the ATIA as information provided in confidence and treated consistently in a confidential manner. It held that the application judge erred on a number of bases in finding this exemption did not apply. Most significantly, it held the application judge erred in finding that the bank had no reasonable expectation of confidentiality because the right of public access in the ATIA expressly applies “notwithstanding any other Act of Parliament” and because the Commission had warned the bank that its information could be subject to public access. Rather, the Court held that the statutory privilege in section 34(1) of the Employment Equity Act provided a reasonable basis for the bank’s belief that the information in question would be held in confidence and held that the bank had also met the other requirements of the section 20(1)(b) exemption.

While the Federal Court of Appeal judgement offers strong support for the application of the section 20(1)(b) to records of information provided to federal regulators and protected by a statutory privilege, the Court did note the requirement to bring the record within the scope of the exemption in every case: “A statutory guarantee of confidentiality is not, in and of itself, a sufficient basis for a claim of exemption under paragraph 20(1)(b) of the ATIA.”

Canadian Imperial Bank of Commerce v. Canada (Human Rights Commission), 2007 FCA 272 (CanLII).