Court of Appeal quashes Ontario IPC order on “correctional records” exemption

Today, the Ontario Court of Appeal held that the IPC erred in finding that an exemption to the right of access to personal information for “correctional records” did not apply to records related to a period of pre-sentence detention. It quashed the IPC’s order and referred the unresolved issues in the matter back to the IPC to be considered afresh by a new adjudicator.

The decision is about an exemption to the right of access to personal information contained in section 49(e) of FIPPA. It reads:

49.  A head may refuse to disclose to the individual to whom the information relates personal information,

(e) that is a correctional record where the disclosure could reasonably be expected to reveal information supplied in confidence

The Court held the IPC’s distinction between pre- and post-sentence custody was “artificial,” “unworkable” and “unreasonable.” First, it suggested that the IPC gave too much weight to the dictionary definition of “correction” and too little weight to meaning derived from the (broad) definition of “correctional services” in the Ministry of Correctional Services Act. Second, it stressed the narrowness of the section 14 “law enforcement” exemption in rejecting an argument that application of section 49(e) to pre-sentence detention records would cause an inexplicable redundancy in the statute. Finally, the Court suggested the IPC’s interpretation was not “workable” in light of the objective context – that is, it held “that at every stage of the [detention] process, be it at the pre-trial custodial stage or the post-sentence supervisory stage, correctional authorities are liable to be exposed to sensitive information about an inmate that has been provided on a confidential basis.”

The legal finding here is narrow, but the Court does endorse a nice statement from Sullivan and Driedger on the use of dictionary definitions in statutory interpretation: “However, while definitions may provide a useful starting point in interpreting a statutory provision, ‘definitions found in dictionaries say very little about the meaning of a word use in a particular context’: R. Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed. (Toronto: Butterworths, 2002), at p. 27.”

Ontario (Community Safety and Correctional Services) v. Ontario (Information and Privacy Commissioner), 2011 ONCA 32.

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