On September 4th, the Federal Court of Appeal quashed an access decision made under the federal Privacy Act because an institution’s access decision, considered in light of the record put before the Court on judicial review, was inadequate.
The record before the Court consisted of:
- a decision letter that claimed two exemptions to the right of access without reasoning and that did not identify the decision-maker;
- a “relatively thin affidavit”; and
- copies of produced and withheld documents.
Although the adequacy of reasons jurisprudence now gives statutory decision-makers significant latitude in describing why they reach a decision, the Court nonetheless held that the record of the access decision before it was so devoid of substance that it rendered a meaningful review of the decision impossible. It then gave federal institutions general advice on how to ensure an adequate record of an access decision, ending with the following summary:
To reiterate, all that is needed is sufficient information for a reviewing court to discharge its role. In cases like this, this can be achieved by ensuring that there is information in the decision letter or the record that sets out the following: (1) who decided the matter; (2) their authority to decide the matter; (3) whether that person decided both the issue of the applicability of exemptions and the issue whether the information should, as a matter of discretion, nevertheless be released; (4) the criteria that were taken into account; and (5) whether those criteria were or were not met and why.
The Court also warned that institutions can only supplement their decision letters to a limited degree by filing affidavits in the judicial review procedure. It held that such affidavits may only “point out factual and contextual matters that are not evident elsewhere in the record that were obviously known to the decision-maker” and “provide the reviewing court with general orienting information.”