All About Information

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).

Paul Broad and I posted our fall edition of the Hicks Morley Information and Privacy Post today. It’s available here. In addition to some brief commentary on “data breach low hanging fruit,” we’ve included summaries of cases that we’ve reviewed since publishing our spring edition. The top draws in our current edition:

• The Divisional Court’s FOI decision on the annonymization of databases and whether replacing a unique identifier (that is also personal information) creates a new record
• The Ontario Court of Appeal’s finding that the public interest override in Ontario’s FOI legislation is unconstitutional and its reading-in remedy
• A decision by labour arbitrator Paula Knopf on a challenge to an employer’s short term disability administration practices
• The latest Ontario decision in the recent flare-up in drug testing litigation, a decision by labour arbitrator Jane Devlin
• A June 27th American e-discovery case that illustrates how not to manage a complex e-discovery project

Please check out the Post. Hope you enjoy!

On July 24, the Federal Court ordered a portion of the information that had been redacted from the report of the Maher Arar Commission to be released.

In September 2006 the Commission objected to the government’s decision to redact 1500 words from its public report on the grounds their disclosure would cause injury to Canada’s international relations, national defence or national security. It gave notice of its position and, in response, the government applied for an order prohibiting disclosure under section 38.04 of the Canada Evidence Act.

The information ordered to be released by the Federal Court can only be discerned by viewing the Commission’s Addendum because the publicly-available court decision (for security reasons) discusses principles but does not apply them to the information in dispute.

The Court applied the three-part test from Canada (Attorney-General) v. Ribic while also acknowledging that its jurisdiction should be exercised in a manner respectful of the uniqueness and utility of commissions of inquiry. Here are some of the principles it endorsed:

• A section 38.04 application is not a judicial review proceeding, and the Federal Court does not owe any measure of deference to government or its delegate. At the same time, the Court held that the Commission’s decision should be considered in answering the first and third part of the Ribic test.
• In determining whether disclosure would be injurious to national security, national defence or international relations, courts should give deference to decisions of the executive. However, the executive’s opinion must have a factual basis and be established by evidence.
• Disclosure of information that is in the public domain may still be injurious. It depends on how much information has been disclosed, whether it is widely-known, whether its authenticity has been confirmed or denied and the circumstances in which inadvertence led to its disclosure.
• Information that is critical of or embarrassing to the government cannot be protected on that basis.
• “National security,” as it is protected by the Canada Evidence Act, means “the preservation of the Canadian way of life, including the safeguarding of the security of persons, institutions and freedoms in Canada.”
• The “third party rule” (an understanding that intelligence agencies providing information to other agencies will control the information’s subsequent use and disclosure) is “of essence to guarantee the proper functioning of modern police and intelligence agencies.” Intelligence allegiances of importance should be given greater protection.
• The “mosaic effect” (an understanding that information which in isolation appears meaningless or trivial could, when fitted together, permit a comprehensive understanding of the information being protected) on its own will not usually provide sufficient reason to prevent disclosure of what would otherwise appear to be an innocuous piece of information. There must be some factual basis for the government’s mosaic effect claim.

The Court also identified seven factors to be assessed and weighed against one another to determine whether the public interest lies in disclosure or in non-disclosure.

Canada (Attorney-General) v. Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, 2007 FC 766 (CanLII).

On June 28th the Information and Privacy Commissioner/Ontario upheld a fee estimate that involved an extensive process of retrieving e-mails.  The Ministry had nine individual custodians conduct electronic keyword searches of their own workstations using a number of specified terms.  The custodians spent time opening e-mails and other documents to determine whether they were responsive.  The Ministry also searched shared directories (presumably using the same terms). 

The IPC held the Ministry’s field filtering process was reasonably efficient and that the Ministry had established the basis for its estimate.  Note that only the efficiency of the search (and not its quality) was under appeal.

Order PO-2592 (Ontario Secretariat for Aboriginal Affairs) (I.P.C. Ont.).