Case Report – NSSC case speaks to harm flowing from disclosure of information outside of its context

21 Dec

In its December 8th freedom of information decision in Halifax Herald v. Nova Scotia (Workers’ Compensation Board), the Nova Scotia Supreme Court addressed a technical yet noteworthy point about unfairness that can flow from disclosing information that may send a stigmatizing message without more context.

The Court ordered access to a list of the names of the 25 employers with the highest number of workplace accidents in Nova Scotia.  The WCB had tried to argue that disclosure of the list alone would harm the companies by unfairly stigmatizing them as employers with a poor attitude towards workplace safety.  The Herald’s response is interesting.  As explained by the Court in the following excerprt, it adduced evidence of its track record for responsible journalism.

In response to WCB’s concern that the disclosure may unfairly embarrass the named employers, the Herald filed a supplementary affidavit of Dan Leger outlining the Herald’s track record and policy of following ethical guidelines for impartiality, completeness, and contextualizing in accord with responsible journalism.  I note that the four other requests made of WCB by the Herald would provide fair context for the one refused.  From the Annual Report, it is clear that if WCB does not have the size of the workforces (request #2) it does have their respective total assessable payrolls, and if WCB does not have their respective safety rating compared to their industry average (request#5) they clearly have calculated their claims cost experience in comparison with their industry peers (Report, p. 13).

 Nothing in the Act exempts the Herald, or any other recipient of the disclosure, from liability under the well-established torts of defamation, injurious falsehood, deceit, or negligence, whether or not Qusson v. Quan 2007 ONCA 771 (CanLII) [sic], 2007 ONCA 771 (recently followed in Grant v. Torstar 2008 ONCA 796 (CanLII), 2008 ONCA 796) is confirmed, modified, or overturned by the Supreme Court of Canada as a result of the hearing scheduled for January 13, 2009.

While interesting, this response conflicts with two key principles in freedom of information law: (1) the identity of the requester is not relevant; and (2) a disclosure to one is treated as a disclosure to the world.  Though the Herald has custody of other information to set the context, has a good track record of responsible journalism and is bound by the law of defamation, as any freedom of information requester it is free to share the information with anyone and everyone, a practice becoming more common on internet “clearing houses” of government information.

The Court did not expressly reject the Herald’s argument, though it did make clear the WCB’s exemption claim failed simply because it had not adduced sufficient evidence to prove an unfair stigma.  It seemed to accept the validity of the “bad attitude” stigma that would attach to the employers, but said the WCB had failed to prove that this stigmatization would be unfair. Without such proof, the WCB’s claim amounted to a claim that the employers would suffer ordinary embarrassment, which is not a basis for exempting information from public access under any freedom of information statute.

The logic of the unfair stigma exemption claim is sound and not upset by this decision.  The decision does, however, illustrate the burden on institutions that raise such a claim.  They must (1) establish the reasonable inference that would flow from disclosure of the de-contextualized information (i.e. the stigma) and (2) prove unfairness by adducing evidence about the full context.

Halifax Herald v. Nova Scotia (Workers’ Compensation Board), 2008 NSSC 369 (CanLII).

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