All About Information

On October 16th, the Alberta Court of Queen’s bench partially affirmed an Alberta OIPC order that dealt with access to e-mails. It is notable for its consideration of e-mails that were alleged to be “personal” and therefore not accessible to the public and its consideration of the process for searching and retrieving e-mails.

There have been a number of recent Ontario cases in which public institutions have argued that “personal” e-mails are not subject to public access because they are not under institutional “custody or control.” In this case, the Edmonton Police Service searched and retrieved three e-mails but made redactions on the basis that full disclosure would constitute an “unjustified invasion of privacy.” In support of this position, it argued that the e-mails were communicated by members of the Edmonton Police Association in the course of association business and with a reasonable expectation of privacy. The Court affirmed the Commissioner’s finding that the e-mails were, in fact, not sent in the course of association business. Although this finding was determinative, it also made the following comment about the Service’s computer use policy:

The EPS also submitted that the EPS Policy 5-E-7 – Electronic Communications does not “allow personal use of its email system” as stated by the Commissioner. While this may be true, the Policy does warn users of the network that communications may be monitored and accessed by system administrators, and there was nothing improper in the Commissioner’s reference to the Policy in considering whether the authors of the Emails would have had an expectation of confidentiality.

The Court also affirmed a finding that the Service did not conduct a reasonable search and set aside an order to restore and search backup tapes.

On the search itself, the requester had argued that the Service ought to have conducted an “electronic search” for responsive records instead of the “field filtering” process it actually employed – i.e. one in which custodians were asked to search, retrieve and deliver up records. (See here for an Ontario case in which the same argument was made.) The OPIC held that field filtering is reasonable, but that “the head, or the head’s delegate, should take a supervisory role and be aware of exactly what steps have been taken to locate record, as the head is accountable for the quality of the search under section 10.” The Court agreed with this, and affirmed the OIPC”s finding that the Service did not engage in proper supervision of its field search.

Finally, the Court held the OIPC erred by ordering the Service to restore and search backup tapes without considering the restriction on the obligation to create records that require an institution to use more than its normal “computer hardware and software and technical expertise” or cause “unreasonable interference” with its operation. The Court seemed to assume that restoring compressed e-mails from a backup tape involves “creating” a record. While taking no position on the issue, I note that this is a point that may be disputed.

Hat tip to Linda MacKay-Panos, who summarizes the decision here.

Edmonton Police Service v. Alberta (Information and Privacy Commissioner), 2009 ABQB 593.

On November 30th, the Federal Court dismissed a federal Access to Information Act application about the application of the solicitor-client privilege exemption. Notably, Montigny J. made the following comment about the confidentiality of draft documents:

The Supreme Court also held in Blank, supra, that there is often a potential for overlap of legal advice privilege and litigation privilege in the litigation context. Legal advice privilege may continue to apply to material to which litigation privilege no longer attaches (Blank, at para. 49). I have found that there are several examples of this kind of overlap in the case at bar. This is true, in particular, of draft court documents or submissions. These draft documents remain protected by legal advice privilege under s. 23 of the Act even though the final version of these documents may have been released once the litigation privilege that applied to them had come to an end. Draft court documents, while being drafted, represent an interchange between solicitor and client, wherein the solicitor provides the client with direction or options as to the legal position to be taken in pending litigation. The client, in turn, comments on that legal advice, provides further instructions, and so forth. Draft court documents and submissions are, by their very nature, intended to be confidential. It is only the final version that is filed with, or submitted to, the court that is not so intended. The draft court documents or submissions clearly satisfy the three criteria set out in Solosky, supra, for legal advice privilege.

This reasoning has general significance to the law of solicitor-client privilege. It is also relevant to exemptions such as the government advice exemption in Ontario freedom of information legislation. The IPC/Ontario, I believe, has taken the position that draft records do not reveal “advice” and are therefore not exempt from public access.

Blank v. Canada, 2009 FC 1221.

On October 29th the IPC/Ontario issued an order in what appears to be a well-litigated dispute about the access request process. It rejected a challenge to the reasonableness of a search and the reasonableness of a fee estimate that was based on the respondent municipality’s manual process of providing access.

The responding municipality’s FOI officer directed officials to conduct searches for responsive records and to print and forward responsive records. The officer then manually de-duplicated and reviewed records prior to providing access. The appellant argued that this process was unreliable and inefficient and that the municipality either should have used its IT department or third-party to process the request using automated means. The IPC deemed the municipality’s chosen process to be reasonable, though it disallowed fees related to 2.5 hours of de-duplication and organization because the municipality did not provide sufficient supporting particulars.

The IPC has, in at least one order, endorsed an “e-access” process in upholding a fee estimate for about $12,500. Though such a process is more in tune with prevailing best practices for records search and retrieval, it will also tend to result in higher costs, all of which can be transferred to an Ontario requester if a third-party service provider is used. Given the requester in this more recent case was asked to pay less than $500 to receive the benefit of the municipality’s (certainly laborious) manual efforts, one may wonder if she really wanted what she asked for.

MO-2472, 2009 CanLII 63119 (ON I.P.C.).

On October 13th, the Federal Court had an opportunity to comment on its jurisdiction to receive applications for review under section 41 of the Access to Information Act. It held that the Court’s jurisdiction is based on a “genuine and continuing claim of refusal of access.” This supported a finding that it had no jurisdiction to (a) hear an application about a series of requests that were deemed to be refused but, through a series of events, answered by the time the application was filed and (b) reprimand the responding institution for delay.

Statham v. Canadian Broadcasting Corp., 2009 FC 1028.

I’ve been preparing a case digest for an upcoming universities conference we’re hosting and summarized these two Ontario FOI cases, both of significance.

April 9th – IPC finds personal e-mails under City’s custody or control

In this order, the IPC held that the City of Ottawa was in custody or control of e-mails its solicitor sent and received in his personal capacity, as a board member of a local Children’s Aid Society. Though acknowledging that the e-mails had nothing to do with City business, it held:

• The City was in physical possessions of the records, which were stored on its e-mail server.
• The City had the authority to regulate the use of the e-mail system upon the records were kept even though personal e-mails were excluded from the definition of “business record” under the City’s retention by-law.
• The City reserved a right to monitor its system for unauthorized use.

The factual basis for this decision is not unique, so it has broad significance for FIPPA and MFIPPA institutions.

The City has filed an application for judicial review.

Order MO-2408, 2009 CanLII 16569 (ON I.P.C.).

August 21st – IPC orders municipality to sue third-party record holder

The IPC issued a compliance order that required a municipality to take “all steps necessary,” including legal action, to obtain records that it decided earlier were under the municipality’s custody or control.

The request was for a model and input data that was in the custody of a third-party consultant who was retained by the municipality to evaluate a proposed landfill site. There was no formal retainer, and after an analyzing the IPC’s traditional “custody or control” factors, in May 2009 the IPC ordered the municipality to “issue a written direction to Jagger Hims to provide the County with the records responsive to the appellant’s request.” The municipality did exactly what the IPC ordered, but the third-party did not cooperate and deliver up the records at issue.

The IPC re-initiated its proceeding. Its compliance order was based in part on a finding that the municipality had a “potent legal basis” for causing the third-party to turn over the records.

Order MO-2449, 2009 CanLII 47235 (ON I.P.C.).

The Federal Court of Appeal has issued a unque FOI judgement that turned on the identity of the requester.

On August 12th, the Court held that records supplied to the Minister of Indian Affairs and Northern Development by an Indian band were not exempt under the Access to Information Act “confidential information supplied to government” exemption. Though the Court accepted the records were confidential, it held they were not exempt vis-a-vis the requster because she had an independent right to the records as a band member based on an Indian Act regulation. The requester filed an access request to the Minister because the band imposed a strict confidentiality condition on providing access. The Court held the condition was unlawful and granted access under the ATIA via the Minister.

In reasoning for the Court, Evans J.A. said:

Since the identity of a requester under the AIA is normally confidential, it may be argued that the identity of a particular requester cannot determine whether information is exempt from disclosure under paragraph 20(1)(b). Of course, if the identity of the requester is not disclosed, it will generally not be possible to establish that otherwise confidential documents are not confidential vas-à-vis that person.

In this case, however, Ms Poitras consented to the disclosure to the Band of her identity, in order to establish her status as a Band member. In these very unusual circumstances, and consistently with a broad interpretation of the AIA and a narrow interpretation of the exceptions, I see no reason why the identity of the requester cannot be taken into account to determine whether the information was confidential as against her.

Canada (Indian Affairs and Northern Development) v. Sawridge First Nation, 2009 FCA 245 (CanLII).

On June 12th, the Divisional Court issued a decision in which it held that documents protected by settlement privilege are exempt from public access under the Ontario Freedom of Information and Protection of Privacy Act. This finding is of consequence itself, but the purpose-driven means by which the Divisional Court reached its secrecy-favouring finding are very significant.

The facts in the case are simple. The LCBO denied access to various records related to a mediated settlement of a number of civil proceedings between itself and a winery. The LCBO relied on the “solicitor-client privilege” exemption in section 19 of FIPPA. This exemption has two branches. Branch 1 exempts records that are subject to solicitor-client privilege and litigation privilege as these privileges are conceived at common law. Branch 2 exempts records that are “prepared by or for Crown counsel for use in giving legal advice or in contemplation or for use in litigation.”

The requester appealed to the Information and Privacy Commissioner/Ontario, who held that Branch 1 of section 19 does not exempt records that are subject to to settlement privilege from public access. The IPC also held that the LCBO did not prove that the records were exempt under Branch 2 of section 19 because, having not submitted affidavit evidence, the LCBO had not proved its stated intention to use the records in litigation should the mediation have failed.

The Divisional Court held that the records were exempt because they were subject to settlement privilege and because they fit within the Branch 2 exemption.

The first finding is very remarkable because the Court relied on FIPPA’s purpose provision rather than any one of the sixteen enumerated exemptions in FIPPA. In effect, the Court created an implied exemption from public access. It stated:

I conclude that the public policy interest in encouraging settlement as embodied in the common law concept of settlement privilege trumps the public policy interest in transparency of government action, in the circumstances of this case. I turn, then, to analyze this conclusion within the context of the indicators of legislative meaning proposed by professor Sullivan.

This interpretation is plausible because it complies with the legislated text (s. 1(a) of FIPPA) which provides for “necessary exemptions” that are “specific and limited.” The exemption is “necessary” to maintain confidentiality of negotiated settlements. The exemption is “specific” and “limited” in that i is specific to and limited by the circumstances of this case. A case-by-case analysis ensures settlement privilege will always be specific to and be limited by particular fact situations.

This interpretation is efficacious because it promotes the legislative purpose of creating exemptions where necessary, provided the exemptions are limited and specific.

This interpretation is acceptable because it leads to a conclusion that is both reasonable and just. As noted earlier in these reasons, no party would willingly entertain settlement discussions with a government institution if it knew its confidential settlement discussions would be made public. This is particularly so where admissions would be made and concessions offered that would be detrimental to that party. If required to discuss settlement by the Rules, those discussion would not, I suggest, be meaningful.

The Court also held that Branch 2 of section 19, interpreted purposely, ought to exempt materials otherwise subject to settlement privilege as a class. It said:

The LCBO asserted before the IPC that the mediation materials were intended for use in litigation should the mediation fail. The IPC refused to consider this because of a finding that there was no evidence to this effect. It is unnecessary for me to resolve this dispute, other than to say it is obvious that some materials used in any mediation will subsequently be used to prepare for trial and at the trial itself…

The wording of Branch 2 imposes no temporal limits on the protection provided nor limits it to particular types of litigation documents, nor specifies specific steps in the litigation. Nothing in the legislative text suggest that the term “litigation” should be given a different mening than that adopted by the courts and reflected in the Rules [of Civil Procedure]. Such an interpretation complies with the legislative text.

Such an interpretation of Branch 2 also promotes the purpose of FIPPA to provide transparency of government functioning “with exceptions where the interests of public knowledge are overbalanced by other concerns” (see Big Canoe (C.A.) above). To interpret Branch 2 in this manner recognizes that in the case of records prepared by or for Crown counsel for use in any aspect of litigation, the interests of the public in transparency are trumped by a more compelling public interest in encouraging the settlement of litigation.

The Court’s protective outlook is very atypical and will certainly be of great concern to the IPC and open government advocates. There’s also some dicta in the decision that reveals a significant subtext.

What flows from the IPC’s view of the law regarding settlement negotiations? First, the details of negotiations and settlement of any dispute between a government institution and a third party will be available to the world at large, following a request. Apparently, a Requester need but ask anonymously and the IPC will undertake the heavy lifting, as in this case. There is a delicious irony in this matter, whereby the IPC, in the name of transparency, labours for an anonymous Requester.

Ontario (Liquor Control Board) v. Magnotta Winery Corp., [2009] O.J. No. 2980 (Div. Ct.) (QL).

The Saskatchewan Court of Queen’s Bench issued a decision on March 9th that is significant to administrative tribunals and others with an interest in access to records of judicial and quasi-judicial decisions. The Court held that the Saskatchewan Automobile Injury Appeal Commission violates neither the Saskatchewan Health Information Protection Act, the Saskatchewan Freedom of Information and Protection of Privacy Act nor the Charter by publishing decisions that include the personal information of claimants.

The Commission hears appeals of adjuster decisions under the Saskatchewan Automobile Insurance Act. It is required to hold open hearings (subject to its own discretion to order otherwise), required to provide written reasons and required to keep records it considers necessary for the proper conduct of its business. Given the nature of its appeals, Commission reasons often include a description of evidence related to claimants’ diagnoses, prognoses and treatment programs.

The applicant moved for relief in Court after the Commission denied her request to forgo publication of its reasons for deciding her claim or, alternatively, redact her name, age, occupation and other identifying details from its reasons. She argued that disclosure was prohibited by Saskatchewan HIPA, Saskatchewan FIPPA and the Charter.

The Court found that the Commission’s adjudicative mandate necessarily implies the power to publish its reasons in the internet and then rejected all three of the applicant’s arguments.

Its most significant finding was on Saskatchewan FIPPA, where it held that the disclosure of personal information in reasons was permissible because the Commission’s written reasons are excluded from the Act as “material that is a matter of public record.” It explained:

I accept all of these three definitions of “public record”. The Commission is a public adjudicative body required to make and keep its decisions. Section 92 of the Regulations states that Commission hearings are open to the public unless the Commission orders otherwise. Its decisions are open to the public even without publishing them on the web. Further, s. 95(1) and 95(2)(d) places an obligation on the Commission to compile a record of a hearing that was held, which consists in part of the written decision of the appeal commission. It is common ground that the decision is on file at the Commission and accessible to the public. The decision of the Commission contains information prepared by a government institution which has a duty to inquire into the issues associated with the hearing and record its findings permanently.

Further, it seems illogical that members of the public could sit at the hearing and listen to all of the evidence but not have access to the decision of the Commission. The written decision is the last piece of the hearing process. Public access to decisions made by the Commission is important to assist individuals in presenting their claims and understanding the decision-making process of the Commission and to further the principle of public access to adjudicative bodies.

The Court also held that publication would otherwise be permitted under the provision in Saskatchewan FIPPA that authorizes non-consensual disclosures of personal information, in part because the personal information in reasons for decisions is collected for a purpose consistent to the purpose of publishing such information.

The Court’s treatment of the applicant’s Charter argument is also worth note. The Court dismissed a section 7 “security of the person” claim, stating “Section 7 does not protect an individual who is suffering from the ordinary anxieties that a person of reasonable sensibility would suffer as a result of being involved in an open adjudicative process.” In the alternative, the Court held that the publication of reasons did not violate the principles of fundamental justice in light of the open courts principle, which it stressed applies equally to administrative tribunals.

This decision must be understood in the context of the longstanding dialogue between the Saskatchewan IPC and the Commission about the publication of its decisions, and is remarkable in that it conflicts so strongly with the position taken by the IPC in a 2005 investigation report (here) and a paper it published in early 2009 (here). The IPC (who did not participate in this court case) made a number of recommendations in 2005 that the Commission initially refused to follow, though it eventually came into line by issuing an internet posting policy effective June 1, 2008. The Commission’s new policy contemplates publication of reasons with personal identifiers and identifying information removed, while also granting the public access to physical copies of unredacted reasons.

Germain v. Automobile Injury Appeal Commission, 2009 SKQB 106 (CanLII).

In an oral judgement issue on May 27th, the Federal Court of Appeal dismissed the Information Commissioner of Canada’s appeal of Justice Kelen’s June 2008 finding that the Prime Minister’s Office and other ministerial offices are not “institutions” whose records are subject to the Access to Information Act.

Justice Kelen had also found that some information in former Prime Minister Chretien’s agenda book in the control of the Privy Council Office and the Royal Canadian Mounted Police was not exempt from public access as his personal information. On May 29th, the Federal Court of Appeal allowed an RCMP appeal of this finding. The Court of Appeal held the Prime Minister is not an officer of the Privy Council Office whose job-related information excluded from the definition of personal information by section 3(j) of the ATIA.

Both of the Court of Appeal judgements turn on a finding that the ATIA was drafted on the basis of a well understood convention that the Prime Minister’s Office is separate from the Privy Council Office and the offices of Minsters are seaprate from the departmetns over which ministers preside.

My detailed summary of Justice Kelen’s judgement is here.

Canada (Information Commissioner) v. Canada (Minister of National Defence), 2009 FCA 175.

Canada (Royal Canadian Mounted Police) v. Canada (Information Commissioner), 2009 FCA 181.

People are abuzz about this April 9th order of the Information and Privacy Commissioner/Ontario in which Adjudicator Corban held that e-mails received by a solicitor employed by the City of Ottawa in his personal capacity were under the custody or control of the City and subject to public access.

The IPC rejected the City’s argument, which rested on a by-law that deemed personal e-mails to be transitory and subject to immediate disposal and the permission it had granted employees to use its computer systems for incidental personal use. The IPC said:

I accept that the City has no objection to the “incidental personal use of City assets such as computers” and the creation or receipt of personal e-mails by its employees. However, I am not persuaded that by allowing for personal usage and by addressing the disposal of such e-mails in its Records Retention By-law the City has given up its authority over personal e-mails stored on City servers…

In my view, the fact that the City has explicitly stated that employees are permitted to use the e-mail system for incidental personal use but that personal use of City computers may be monitored for unauthorized use by the City’s Information and Technology staff, supports a conclusion that the City does have the authority to regulate the treatment of those records even if it chooses not to do so.

This order is reminiscent of (though far less sexy than) the Bobbie Malmer case out of Kentucky. It is also consistent with the traditional view on control of information stored on corporate computer systems. Though the application of our commercial sector privacy legislation, PIPEDA, does not hinge on custody or control, the Federal Court recently found that personal e-mails were not subject to PIPEDA in Johnson v. Bell Canada.

I’ll be speaking about employer access to personal e-mails at a couple of upcoming seminars, including the OBA’s Hot Topics in Privacy Law. Access is a different issue than the control issue (an idea touched upon in this order), but is related and also bound up in developing expectations of privacy based on personal use. An extremely engaging issue right now!

[Addendum. Query whether this outcome is consistent with the purpose of freedom of information legislation? Should the concept of "control" be significantly narrower for the purposes of triggering a right of access than in other circumstances (e.g. for litigation or regulatory production requirements)?]

Order MO-2408 (9 April 2009, IPC/Ontario).